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NORTH CAROLINA 

REGISTER 

JUL i^ J955 VOLUME 11 • ISSUE 8 • Pages 441 -567 

iCATHP.INE R XVERETT / 



July 15, 1996 




IN THIS ISSUE 




Executive Order 




Environment, Health, and Natural Resources 




Human Resources 




Soil Scientists, Licensing of 




List of Rules Codified 




Rules Review Commission 




Contested Case Decisions 


■ 
> 



PUBLISHED BY 

The Office of AdminlstraUve Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 27611-7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



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NORTH CAROLINA 



IN THIS ISSUE 




Volume 1 1 , Issue 8 
Pages 441 - 567 



July 15, 1996 



This issue contains documents officially 
filed through June 21, 1996. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

PO Drawer 27447 

Raleigh, NC 27611-7447 

(919) 733-2678 

FAX (919) 733-3462 



Julian Mann HI, Director 

James R. Scarcella Sr., Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Teresa Kilpatrick, Editorial Assistant 

Jean Shirley, Editorial Assistant 
Linda Richardson, Editorial Assistant 



I. EXECUTIVE ORDER 

Executive Order 96 441 

n. RULE-MAKING AGENDA 

Environment, Health, and Natural Resources 

Coastal Management 442 - 448 

Environmental Management 442 - 448 

Health Services 442-448 

Soil and Water Conservation 442 - 448 

m. RULE-MAKING PROCEEDINGS 

Environment, Health, and Natural Resources 

Wildlife Resources Commission 451 

Human Resources 

Child Day Care Commission 449 

Medical Assistance 450 - 451 

Mental Health, Developmental Disabilities and 

Substance Abuse Services 449 - 450 

Vocational Rehabilitation Services 450 

rV. PROPOSED RULES 

Environment, Health, and Natural Resources 

Environmental Management 472 - 495 

Wildlife Resources Commission 495 - 523 

Human Resources 

Facility Services 452 - 472 

Licensing Board 

Soil Scientists, Licensing of 523 - 527 

V. TEMPORARY RULES 
Human Resources 

Social Services Commission 528 - 535 

VI. APPROVED RULES 

Environment, Health, and Natural Resources 

Health Services 536 

VII. LIST OF RULES CODIFIED 537-543 

Vin. RULES REVIEW COMMISSION 544-547 

IX. CONTESTED CASE DECISIONS 

Index to AU Decisions 548 - 554 

Text of Selected Decisions 

92 BME 0510 555-563 

96 ABC 0160 564-566 

X. CUMULATIVE INDEX 1-21 










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EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 96 

TASK FORCE ON RACIAL OR RELIGIOUS 

VIOLENCE AND INTIMIDATION 

It is the policy of the State of North Carolina to protect 
the right of every person in the state to worship freely 
without fear or threat of violence and intimidation. Free- 
dom from crime and freedom to worship are basic civil 
rights of all our citizens. We oppose all those who espouse 
hatred and violence as a means to intimidate anyone who 
seeks to exercise their constitutional rights and freedoms. 

NOW THEREFORE, by the authority vested in me as 
Governor by the Constitution and laws of North Carolina, 
IT IS ORDERED: 

Section L 

There is hereby established the Task Force on Racial or 
Religious Violence and Intimidation. 

Section 2^ 

The Task Force shall consist of 21 persons to include the 
following: 

(1) The Attorney General; 

(2) The Secretary of Crime Control and Public Safety; 

(3) The Director of the State Bureau of Investigation; 

(4) The Chairperson of the North Carolina Human 
Relations Commission; 

(5) The Chairperson of the Martin Luther King Jr. 
Commission; 

(6) 16 persons appointed by the Governor as follows: 

(a) A District Attorney 

(b) A United States Attorney 

(c) A Police Chief 

(d) A Sheriff 

(e) A member of the North Carolina Senate 

(f) A member of the North Carolina House of Repre- 
sentatives 

(g) A representative of the Federal Bureau of Investi- 
gation 

(h) A representative of the Bureau of Alcohol, To- 
bacco and Firearms 

(i) Four ministers 

(j) Four citizens at-large 
Each such person shall serve for a term expiring December 
31, 1996. 



first meeting of the Task Force shall be held as soon as 
possible after the appointment of its members. 

Section 4. 

The Task Force shall perform such duties as are assigned 
by the Governor and the Attorney General and shall work 
closely with the staff of the North Carolina Human Rela- 
tions Cotmnission and the North Carolina Department of 
Justice. The following shall be among its duties: 

(a) Establish a uniform statewide system for reporting, 
recording and responding to incidences of arson, 
vandalism and bomb threats against churches and 
other institutions, and racial or religious groups or 
associations; 

(b) Establish a central location for the collection, analysis 
and dissemination of data relating to racial and 
religious violence; 

(c) Research policies, procedures and laws pertaining to 
hate group activities and racially motivated violence 
and intimidation, and recommend changes where 
needed to existing legislation; 

(d) Establish a statewide assistance and support network 
for churches and other institutions and racial or 
religious groups or associations that are victims of 
racial or religious violence and intimidation; 

(e) Educate the public and law enforcement officials 
about racial and religious violence and intimidation 
and provide training in responding to such activity; 

(f) Coordinate all activities related to racial and religious 
violence and develop a plan of implementation and 
monitoring; 

(g) Encourage and facilitate cooperation and coordination 
of all law enforcement activities dealing with racial 
or religious violence and intimidation; and 

(h) Update the Governor at regular intervals on the status 
of the Task Force activities and submit a final report 
by December 31, 1996. 

Section 5. 

While on official business, members of the Task Force 
shall be entitled to reimbursement for travel and subsistence 
as may be authorized for members of State boards and 
commissions generally. The North Carolina Human 
Relations Commission and the North Carolina Department 
of Justice shall provide planning and administrative support 
for the Task Force. 



The Chairperson of the Task Force shall be the Attorney 
General. The Vice Chairperson shall be appointed by the 
Governor. 



Section 3. 

The Task Force shall meet as frequently as needed. 



The 



This Executive Order shall become effective immediately 
and shall remain in effect until December 31, 1996. 

Done in the Capital City of Raleigh, North Carolina this 
the 14th day of June 1996. 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



441 



RULE-MAKING AGENDA 



An agency may choose to publish a rule-making agenda which serves as a notice of rule-making proceedings if the 
agenda includes the information required in a notice of rule-making proceedings. The agency must accept comments o 
the agenda for at least 60 days from the publication date. Statutory reference: G.S. 150B-21.2. 



TITLE ISA 
DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Tliis supplemental agenda will serve as the notice of rule-making proceedings for the following rule-making bodies from July 
15, 1996 through September 13, 1996: 

Environmental Management Commission - to rules codified in 15A NCAC 2; 
Soil and Water Conservation Commission - to rules codified in 15A NCAC 6; 
Coastal Resources Commission - to rules codified in 15 A NCAC 7; and 
Commission for Health Services - to rules codified in 15A NCAC 13B and 18A. 



AIR OUALFTY 
APA# SUBJECT 

E2002 Air Toxics 

COASTAL MANAGEMENT 
APA # SUBJECT 

El 994 Use Standards for Ocean Hazard Areas: 

Exceptions 



DEHNR Regulatory Agenda Index - June 20, 1996 



RULE CITATION # 

15A NCAC 2D .1100, 2H .0610, 2Q .0700 



RULE CITATION # 

15A NCAC 7H .0309 



ENVIRONMENTAL HEALTH/ENV. HEALTH SERVICES 



APA # SUBJECT 

H6386 Sanitation of Hospitals: Nursing and Rest 

Homes: Sanitariums: Educational and 
Other Institutions 



RULE CITATION # 

15A NCAC 18A .1300 .1301, .1302, and .1319 



H6387 



H6388 
.0614, 



Handling: Packing: Repacking: and 
Shipping of Crustacea and Crustacea Meat 

Rules Governing the Sanitation of Shellfish 



15A NCAC 18A .0134, .0136, .0137, .0159, .0168, .0169, 
.0173, .0174, .0175, .0176, .0182, .0183, .0184, .0185, .0187 

15A NCAC 18A .0301, .0302, .0401, .0421, .0424, .0425, 

.0615, .0616, .0617, .0618, .0620, .0621, .0901 



SOIL AND WATER CONSERVATION 
APA # SUBJECT 

N1712 Agriculture Cost Share Program - 

Allocation Guidelines and Procedures 



RULE CITATION # 

15A NCAC 6E .0003 



WASTE MANAGEMENT 
APA # SUBJECT 

El 990 Household Hazardous Waste 



RULE CITATION # 

15A NCAC 133 .1800 



E2005 Landfill Closure 

DEHNR Regulatory Agenda - June 20, 1996 

APA #: E1990 

SUBJECT: Household Hazardous Waste 
RULE CITATION #: 13A NCAC 13B .1800 
STATUTORY AUTHORITY: G.S. 130A-294 



15ANCAC 13B .1627 



442 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



RULE-MAKING AGENDA 



DIVISION/SECTION: WASTE MANAGEMENT 

DIVISION CONTACT: Joan Troy 

DIVISION CONTACT TEL#: (919)733-0692 

DATE INITIATED: 6/17/96 

DURATION OF RULE: Permanent 4/1/97 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

The purpose of this rule-making action is to ensure that household hazardous waste facilities which also may 
accept conditionally exempt small quantity generator hazardous waste operate in an efficient and environmentally 
acceptable manner. 

SCOPE/NATURE/SUMMARY : 

TTiese Rules outline the requirements for the establishment and operation of facilities that collect and store 
household hazardous wastes and hazardous wastes from conditionally-exempt small quantity generators. 

APA #: El 994 

SUBJECT: Use Standards for Ocean Hazard Areas: Exceptions 

RULE CITATION #: 15A NCAC 7H .0309 

STATUTORY AUTHORITY: G.S. 113A-107(a); 113A-107(b); 113A-113(b)(6)b; 113A-113(b)(6)d; 113A-124 

DIVISION/SECTION: COASTAL MANAGEMENT 

DIVISION CONTACT: Preston Pate 

DIVISION CONTACT TEL#: (919)726-7021 

DATE INITIATED: 6/18/96 

DURATION OF RULE: Permanent 4/1/97 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

Response to request from pier owners for consideration of the hardship created by the current rules, and the 
benefits provided by their facilities. 

SCOPE/NATURE/SUMMARY : 

Current rules do not allow replacement of structures in the Ocean Hazard AEC that do not conform to current 
requirements for setbacks, etc. The new rule will make an exception for pier houses associated with piers 
providing pubhc access to the beaches and ocean waters. The proposed amendment to pier house rules will in 
effect grandfather existing pier houses as of January 2, 1996. The new rule will allow those structures to be 
maintained or replaced in their current configuration, so as not to put an undue financial burden on the owner 
by eliminating the use of the structure. 

APA #: E2002 

SUBJECT: Air Toxics 

RULE CITATION #: 15A NCAC 2D .1100, 2H .0610, 2Q .0700 

STATUTORY AUTHORITY: G.S. 143-213; 143-215.3(a)(l); 143-215.68; 143-215. 107(a)(1), (3), (4), (5), (10); 

143-215.108; 143B-282; 
DIVISION/SECTION: AIR QUAUTY 
DIVISION CONTACT: Thorn Allen 
DIVISION CONTACT TEL#: (919)733-7015 ext. 1489 
DATE INITIATED: 6/25/96 
DURATION OF RULE: Permanent 4/1/97 
TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 
GOV LEVELS AFFECTED: None 
REASON FOR ACTION : 

To incorporate changes recommended by the Air Toxic Working Group, to revise several acceptable ambient 

levels, and to revise to procedure for bringing facilities under the air toxic 
SCOPE/NATURE/SUMMARY : 

The Legislative Review Commission established an Air Toxic Working Group to review and evaluate the NC 



NORTH CAROLINA REGISTER July 15, 1996 443 



RULE-MAKING AGENDA 



air toxic rules to determine if changes were needed in the air toxics program. The Air Toxic Working Group 
made several recommendations that involve rule changes. The changes include: 

1. giving industry the option of having Air Quality to do the initial modeling, 

2. changing the averaging time for acute irritants from 15 minutes to one hour, 

3. including pollution prevention plan requirement as part of maximum feasible control technology, 

4. exempting boilers burning only unadulterated fuel, and 

5. exempting insignificant activities where appropriate. 

Based on recommendations from the Scientific Advisory Board, acceptable ambient levels for several existing 
compounds are proposed to be revised, and acceptable ambient levels are proposed for several new compounds. 
The existing compounds proposed for revision include 1,3-butadiene (4.6x10"* mg/m' aimual average), toluene 
diisocyanate (0.0002 mg/m' 24-hour average), and methylene chloride. TTie new compounds include methanol 
(26 mg/m' 24-hour average), glutaraldehyde (0.(X)6 mg/nf 24-hour average), n-butanol (3.85 mg/ri 24-hour 
average), acrylic acid (0.1 mg/m' one-hour average), allyl chloride (0.012 mg/rd 24-hour average, methylene 
diphenyl isocyanate, and hexamethylene diisocyanate (0.00003 mg/m^ 24-hour average). 

Other changes being considered include adding a schedule by which facilities with no sources subject to a MACT 
(maximum achievable control technology) requirement, excluding the boiler MACT, would submit applications 
to comply with the air toxic rules. The schedule would most likely be based on standard industrial codes. 
Facilities with one or more sources subject to a MACT requirement, excluding the boiler MACT, would submit 
applications to comply with the air toxic rules along with the application to comply with the last MACT. 

The aforementioned rule changes would be made to 15A NCAC 2D .1100 and 2H .0610, which is to be 
recodified as 15A NCAC 2Q .0700. 

APA #: E2005 

SUBJECT: Landfill Closure 

RULE CITATION #: 15A NCAC 13B .1627 

STATUTORY AUTHORITY: G.S. 130A-294 

DIVISION/SECTION: WASTE MANAGEMENT 

DIVISION CONTACT: Joan Troy/Dexter Matthews 

DIVISION CONTACT TEL#: (919)733-0692 

DATE INITIATED: 6/27/96 

DURATION OF RULE: Permanent 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

The purpose of the rule amendments is to require owners and operators of unlined landfills to provide a more 
environmentally sound cap system than is currently required for unlined landfills at closure. Further the 
amendments avoid fiscal impact to the regulated community by providing that the increased cost of a superior 
cap system may be covered by appropriate delay of that landfill's closure. 

SCOPE/NATURE/SUMMARY: 

The proposed amendment changes an existing rule that requires existing municipal solid waste landfills that are 
not designed and constructed with a base liner system permitted by the Division to cease receiving solid waste 
on or before January 1, 1998. The changed rule will require a cap system that reduces infiltration into the 
landfills as expeditiously as possible while avoiding fiscal impact through tip fees after 1 January 1998. 

APA #: H6386 

SUBJECT: Sanitation of Hospitals: Nursing and Rest Homes: Sanitariums: Educational and Other Institutions 

RULE CITATION #: 15A NCAC 18A .1301, .1302, and .1319 

STATUTORY AUTHORITY: G.S. 130A-235 

DIVISION/SECTION: ENVIRONMENTAL HEALTH/EN V. HEALTH SERVICES 

DIVISION CONTACT: Bob Benton 

DIVISION CONTACT TEL#: (919)726-6827 

DATE INITIATED: 6/14/96 

DURATION OF RULE: Permanent 



444 NORTH CAROLINA REGISTER July 15, 1996 11:8 



RULE-MAKING AGENDA 



TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 
GOV LEVELS AFFECTED: None 
REASON FOR ACTION : 

Educational facilities are deemed to be inappropriately addressed in the institutional rules. 

ff: H6387 

SUBJECT: Handling: Packing: Repacking: and Shipping of Crustacea and Crustacea Meat 

RULE CITATION #: 15A NCAC 18A .0134, .0136, .0137, .0159, .0168, .0169, .0173, .0174, .0175, .0176, 

.0182, .0183, .0184, .0185, .0187 

STATUTORY AUTHORITY: G.S. 106-129; 106-130; 130A-230 

DIVISION/SECTION: ENVIRONMENTAL HEALTH/ENV. HEALTH SERVICES 

DIVISION CONTACT: Bob Benton 

DIVISION CONTACT TEL#: (919)726-6827 

DATE INITIATED: 6/14/96 

DURATION OF RULE: Permanent 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

The agency and the Crustacea industry believe that changes in the existing Crustacea rules are needed so that 
Crustacea meat from out-of-state sources can be repacked. This activity is allowed in other states and puts the 
industry in North Carolina at a disadvantage. 

Other needed changes deal with heat processing, labeling, freezing and bacteriological standards. 
SCOPE/NATURE/SUMMARY : 
.0134 Definitions 

(1) and (9) are proposed for revision to more clearly define adulterated and misbranded Crustacea and Crustacea 

meat. 

(13) is proposed for revision to include repacking and thermal processing. 

(14) is proposed for revision to conform to the proposed changes in Rule .0173 

(17) is proposed for adoption to define thermal processing. Thermal processing is a new concept in the Crustacea 
industry. Proposed rules .0184, .0185, .0186 and .0187 relate to thermal processing. 

.0136 Applicability of Rules 

This Rule is proposed for revision to clearly define the coverage of Crustacea rules. 

.0137 General Requirements for Operation 

(c) is proposed for revision to require Crustacea and Crustacea meat purchase records and to make records of 
purchases and sales available to the Division. 

.0159 Separation of Operations 

(8) and (10) are proposed for addition to require separation for thermal processing and repacking from other 
Crustacea operations. 

.0168 Single Service Containers 

(a) and (b) are projxjsed for revision to require that repacking containers be approved by the Division and shall 

not be reused. 

(c), (d), (e) and (f) are proposed for revision to allow labeling lids. 

(g) is proposed for revision to require notification to consumers that containers of Crustacea products are "Sealed 

For Your Protection. " 

.0169 Freezing 

(a) is profX)sed for revision to delete the requirement that Crustacea or Crustacea meat be frozen within 48 hours 
of packing. The requirement is not enforceable on products imported into North Carolina. 

(b) is proposed for revision to provide labeling of Crustacea or Crustacea meat which is thawed prior to sale. 

(c) is proposed for revision for clarification to include whole cooked Crustacea. 



NORTH CAROLINA REGISTER July 15, 1996 445 



RULE-MAKING AGENDA 



.0173 Repacking 

This Rule is proposed for revision to allow the repacking of Crustacea meat produced outside of North Carolina. 
Part of this rule is proposed to be deleted since the Division has no control over the processing of imported 
Crustacea meat. 

.0174 Pasteurization Process Controls - Thermometers 

(1) is proposed for addition to allow the use of new technologies to support Division requirements. 

.0175 Preparation of Crustacea Meat for Pasteurization 

This Rule is proposed for revision to include Rule .0183. 

.0176 Pasteurization of Crustacea Meat 

This Rule is propxjsed for revision to delete the requirement that Crustacea meat be pasteurized within 48 hours 
of picking. The Division is unable to determine when imported Crustacea is picked. 

.0182 Bacteriological and Contamination Standards 

(c) is proposed to establish bacteriological standards for thermally processed Crustacea or Crustacea meat. 

.0183 Alternative Labeling 

This Rule is proposed for adoption to allow adhesive labels to meet labeling requirements. This change is to 
conform to current food industry practices. 

.0184 - .0187 

These Rules are proposed for adoption to allow Crustacea and Crustacea meat to be thermally processed to 
enhance shelf Ufe. These propwsed rules will provide the Division with enforcement authority and industry with 
guidelines to ensure that Crustacea and Crustacea meat can be safely processed. 

APA #: H6388 

SUBJECT: Rules Governing the Sanitation of Shellfish 

RULE CITATION #: 15A NCAC 18A .0301, .0302, .0401, .0421, .0424, .0425, .0614, .0615, .0616, .0617, 

.0618, .0620, .0621, .0901 

STATUTORY AUTHORITY: G.S. 130A-230 

DIVISION/SECTION: ENVIRONMENTAL HEALTH/ENV. HEALTH SERVICES 

DIVISION CONTACT: Bob Benton 

DIVISION CONTACT TEL#: (919)726-6827 

DATE INITIATED: 6/14/96 

DURATION OF RULE: Permanent 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

The proposed changes in the Rules Governing the Sanitation of Shellfish are needed to bring North Carolina's 

rules into conformity with the National Shellfish Sanitation Program guidelines which are administered by the 

US Food and Drug Administration. 
SCOPE/NATURE/SUMMARY : 
.0301 Definitions 

(5) is proposed for adoption to define certification number to conform to FDA Manual of Operations. 

.0302 Permits 

is proposed for change to require that approval for wet storage shall be granted only to persons permitted in this 
Rule. 

.0401 Applicability of Rules 

is proposed for change to delete temperature and tagging requirements on shellfish in possession of individuals 
for personal consumption. 

.0421 Daily Record 



446 NORTH CAROLINA REGISTER July 15, 1996 11:8 



RULE-MAKING AGENDA 



is proposed for change to require permitted dealers to maintain records of both wholesale and retail sales of 
shellfish. In addition, the rule is proposed for change to allow innovative record keeping In lieu of permanently 
bound ledgers. 

.0424 Shellfish Receiving 

is proposed for change to delete the tagging exemption from a harvester to a permitted dealer. NC Division of 
Marine Fisheries requires that all harvesters tag each container of shellfish prior to sell. 

.0425 Tagging 

(2) is proposed for revision to be consistent with the proposed rule change in .0301(5) which defines certification 
number. (4) is proposed for revision to include the country or state abbreviation for harvest location. This 
change is to conform to FDA Manual of Operations. 

.0614 Containers 

(b) and (d) are proposed for revision to provide consistency of terminology, (c) is proposed for revision to be 
consistent with FDA Manual of Operations. 

.0615 Shellfish Cooling 

is proposed for revision for consistency within rules and to be consistent with proposed change in Rule .0616. 

.0616 Shellfish Freezing 

(b) is proposed for deletion to allow shellfish to be thawed for resale or repacking. In addition, the change will 
be consistent with FDA Manual of Operations. 

.0617 Shipping (a) is proposed for revision to provide consistency within rules. 

.0618 Heat Shock Method of Preparation of Shellfish 

(I) is proposed for revision to provide consistency of terminology within rules. 

.0620 Shellfish Thawing and Repacking 

is proposed for adoption to establish criteria to ensure product safety and labeling requirements during thawing 
and repacking. 

.0621 Recall Procedure 

is proposed for adoption to require each certified dealer to have a recall procedure to more easily facilitate a 
product recall .and to conform to FDA Manual of Operations. 

.0901 Definitions 

(19) is proposed for revision to include scallops to conform to FDA Manual of Operations. 

APA #: N1712 

SUBJECT: Agriculture Cost Share Program - Allocation Guidelines and Procedures 

RULE CITATION #: 15A NCAC 6E .0002, .0003 

STATUTORY AUTHORITY: G.S. 139-4; 139-8; 143-215.74; 143B-294 

DIVISION/SECTION: SOIL AND WATER CONSERVATION 

DIVISION CONTACT: Vernon Cox 

DIVISION CONTACT TEL#; (919)715-6109 

DATE INITIATED: 6/3/96 

DURATION OF RULE: Permanent 

TYPE OF RULE: 

STAGE OF DEVELOPMENT: Draft Rule Stage 

GOV LEVELS AFFECTED: None 

REASON FOR ACTION : 

The Division of Soil & Water Conservation (DSWC), with the approval of the Soil and Water Conservation 
Commission, proposes that the rules outlined in 15A NCAC 06E .0003 (d), (e) and (f) be amended. 

The proposed rule change will amend the guidelines for allocating cost share funds by changing the deadline for 



11:8 NORTH CAROLINA REGISTER July 15, 1996 447 



RULE-MAKING AGENDA 



Districts to encumber funds, request to retain unencumbered funds, and to request additional cost share funds 
from the Commission. Changing the dates by which these activities will occur will provide the staff of the 
DSWC additional time needed to process the contracts in order to meet the regulatory deadlines of the program. 

SCOPE/NATURE/SUMMARY : 

Section .0003 of Subchapter 6E outlines the allocation guidelines and procedures for the Agriculture Cost Share 
Program. 

As the Agricultural Cost Share Program has expanded, the number of contracts processed by the staff of the 
DSWC has increased dramatically, with a significant number of contracts arriving just before the deadline for 
Soil and Water Conservation Districts to encumber funds to contracts. 

The rule change will move up by two weeks the date by which Districts must encumber cost share funds or have 
the funds subject to recall by the Commission. This date will be changed from the first Wednesday in March 
to the third Wednesday in Februaiy. Districts with unencumbered funds on that date will continue to have the 
option to submit a request to the Commission to retain these funds. This amendment would change the date by 
which these requests must be received from the second Wednesday in March to the first Wednesday in March 
and specifies that the requests must be received by the Division by 9:30 a.m. on that date. The final change to 
the rules would require that Districts apply for any additional cost share funds that may be available by the first 
Wednesday in March, rather than the second Wednesday of that month. 



448 NORTH CAROLINA REGISTER July 15, 1996 11:8 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. 
The agency must publish a notice of the subject matter for public comment at least 60 days prior to publishing 
the proposed text of a rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and 
can be found in the Register under the section heading of Temporary Rules. A Rule-making Agenda published 
by an agency serves as rule-making proceedings and can be found in the Register under the section heading of 
Rule-making Ageruias. Statutory reference: G.S. 150B-21.2. 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3U - CHILD DAY CARE 
STANDARDS 

A Jotice of Ride-making Proceedings is hereby given by 
ly/the NC Child Day Care Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in 
the Register the text of the rule it proposes to adopt as a 
result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Maldng: 

10 NCAC 03U .0700, .2510, and .2606. Other rules may 
be proposed in the course of the rule-making process. 



Authority for the rule-making: 

168.3 



G.S. 110-91(8); 143B- 



Statement of the Subject Matter: Qualification require- 
ments for child day care administrators and child day care 
teachers. 

Reason for Proposed Action: To amend the rules to 
change language related to training requirements for 
administrators and caregivers. 

Comment Procedures: Questions or written comments 
regarding these matters may be directed to Jeanne Marlowe, 
APA Coordinator, Division of Child Development, 319 
Chapanoke Road, P. O. Box 29553, Raleigh, NC 27626- 
0553; (919) 662-4527. 

****************** 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3U - CHILD DAY CARE 
STANDARDS 

\ Jotice of Rule-making Proceedings is hereby given by 
ly the NC Child Day Care Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in 
the Register the text of the rule it proposes to adopt as a 
result of this notice of rule-making proceedings and any 
comments received on this notice. 



Citation to Existing Rules Affected by this Rule-Making: 

10 NCAC 03U . 0901. Other rules may be proposed in the 
course of the rule-making process. 



Authority for the rule-making: 

168.3 



G.S. 110-91(2); 143B- 



Statement of the Subject Matter: General nutrition 
requirements for children in day care facilities. 

A Public Hearing will be conducted at 4:00 - 8:00 p. m. on 
September 4, 1996 at the Division of Child Development, 
319 Chapanoke Road, Room 300, Raleigh, NC. 

Reason for Proposed Action: A petition was filed by 
Kathie Adams to amend this Rule to exempt day care 
facilities which do not supply food for children from mini- 
mum nutritional requirements. The Commission does not 
endorse the petition. 

Comment Procedures: Questions or written comments 
regarding this matter may be directed to Jeanne Marlowe, 
APA Coordinator, Division of Child Development, 319 
Chapanoke Road, P. O. Box 29553, Raleigh, NC 27626- 
0553; (919) 662-4527. 

**««***««*««****** 

CHAPTER 14 - MENTAL HEALTH: GENERAL 

CHAPTER 15 - MENTAL HEALTH: HOSPITALS 

CHAPTER 45 - COMMISSION FOR MENTAL 

HEALTH, DEVELOPMENTAL DISABILITIES 

AND SUBSTANCE ABUSE SERVICES 

"K Jotice of Rule-making Proceedings is hereby given by 
1 y the Commission for Mental Health, Developmental 
Disabilities and Substance Abuse Services in accordance 
with G.S. 150B-21.2. The agency shall subsequently publish 
in the Register the text of the rule(s) it proposes to adopt as 
a result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

10 NCAC 14V. 3400, .3800, .5600; 15A .0100; 45H .0200. 
Other rules may be proposed in the course of the rule- 
making process. 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



449 



RULE-MAKING PROCEEDINGS 



Authority for the rule-making: G.S. 20-179; 20-179.2; 
90-88; 90-89; 122C-3; 122C-26; 122C-112; 122C-117; 
143B-147 

Statement of the Subject Matter: 

10 NCAC 14V .3400 - Residential Treatment/Rehabilitation 

for Individuals with Substance Abuse Disorders 

10 NCAC 14V .3800 - Alcohol and Drug Education Traffic 

Schools (Adets) 

10 NCAC 14V .5600 - Supervised Living for Individuals of 

All Disability Groups 

10 NCAC 15A .0100 - Admission and Discharge of Adults 

and Minors To and From Regional Psychiatric Hospitals 

10 NCAC 45H .0200 - Schedules of Controlled Substances 

Reason for Proposed Action: 

10 NCAC 14V .3400, .3800, .5600 - To clarify language 

contained in these Rules. 

10 NCAC 15 A .0100 - To repeal rules with duplicative 

language. 

10 NCAC45H .0200 - To schedule a controlled substance 

to be consistent with actions by the Drug Enforcement 

Association. 

Comment Procedures: Written comments may be submitted 
to Charlotte F. Hall, Rule-making Coordinator, Division of 
Mental Health, Developmental Disabilities and Substance 
Abuse Services (DMH/DD/SAS), 325 N. Salisbury Street. 
Albemarle Bldg. , Suite 558, Raleigh, NO 27603-5906, FAX 
919-733-8259. Comments will be accepted through Septem- 
ber 13, 1996. 

CHAPTER 20 - VOCATIONAL REHABILITATION 

A Jotice of Rule-making Proceedings is hereby given by 
1 y the Department of Human Resources, Division of 
Vocational Rehabilitation Services in accordance with G. S. 
150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a 
result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

10 NCAC 20B . 0200; 20C . 0600; 20D . 0200. Other rules 
may be proposed in the course of the rule-making process. 

Authority for the rule-making: G.S. 143-545A; 143-546A; 
34 C.F.R. 361.36; 34 C.F.R. 361.45; 34 C.F.R. 361.48 

Statement of the Subject Matter: 

10 NCAC 20B .0200 contains the Division 's procedures for 
conducting administrative reviews and appeals hearings. 
10 NCAC 20C .0600 contains the Division's policies 
governing an order of selection for services if the Division 
is not able tofiimish services to all eligible individuals who 



apply. 

10 NCAC 20D .0200 contains the standards for facilities 
and community rehabilitation programs that must be met if 
the Division uses them to furnish services to clients. 

Reason for Proposed Action: 

10 NCAC 208 .0200 is being amended to assign the 
responsibilities formerly performed by the Deputy Director 
to the Head of Casework Services because the Division no 
longer has the Deputy Director position and to make 
technical correction to the rules. 

10 NCAC 20C .0600 is being amended because the rules do 
not meet all the requirements of the final federal regulations 
on the order of selection for service process. The current 
priority for individuals being served by a program designed 
to help individuals transition from school to work does not 
meet federal requirements and must be changed. 
10 NCAC 20D .0200 is being amended because the Division 
is no longer monitoring standards itself. The change will set 
two options for community rehabilitation programs: (1) to 
receive a fixed level of finding programs would have to meet 
the standards of a national accreditation body specified by 
the Division; or (2) not receiving a fixed level of funding 
programs would have to meet the requirements of the 
accreditation process of the Division of Mental Health, 
Developmental Disabilities , and Substance Abuse Services. 

Comment Procedures: The record will be open for receipt 
of written comments on these proposed action from July 15, 
1996 until September 13, 1996. Written comments should be 
mailed to Jackie Stalnaker, P. O. Box 26053, Raleigh, NC 
27611. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26G - PROGRAM INTEGRITY 

"K Jotice of Rule-making Proceedings is hereby given by 
J. y the DHR/Division of Medical Assistance in accordance 
with G.S. 150B-21.2. The agency shall subsequently publish 
in the Register the text of the rule(s) it proposes to adopt as 
a result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

10 NCAC 26G .0707. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 108A-25(b); 108A- 
54; 108A-63; 42 C.F.R. Part 455 

Statement of the Subject Matter: Federal Regulation 42 
CFR 455, Program Integrity Medicaid, sets the requirements 
for reporting, detecting and identifying fraud and abuse 
within the Medicaid program. As a condition of receiving 



450 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



RULE-MAKING PROCEEDINGS 



Federal Financial Participation, the Medicaid agency must 
recoup all moneys paid out inappropriately. The federal 
share of this money must be refunded to the Health Care 
Financial Administration. The wording in Paragraph (b) of 
this Rule, will not allow recoupment of moneys identified 
through Disproportionate Stratified Random Sampling 
Technique for first time offenders. This could endanger the 
Federal Financial Participation in that the agency is not 
recouping moneys paid out inappropriately because of the 
present rule. The federal government could request the 
State to pay back federal moneys out of State Funds for the 
State's failure to follow Federal Regulations. This could 
cause hardship to the State and to Medicaid recipients. 

Reason for Proposed Action: Medicaid Pays Part B 
Premium for approximately 200,000 dual eligible recipients. 
Medicaid pays the co-insurance and deductible on claims 
filed to Medicare for this category of recipients. Medicare 
pays 80% of the cost of care on this category of recipients. 
Medicaid pays 20% (co-insurance and deductible) on this 
category of recipients. At the present Medicare makes 
recoupments from providers that serve this category of 
recipients using a Disproportionate Stratified Random 
Sampling Technique. Medicaid is unable to recoup the 
(20% co-insurance and deductible) on these claims because 
our present rule states that the "Agency will use a Dispro- 
portionate Stratified Random Sampling Technique in estab- 
lishing provider overpayments only for repeat offenders. " 
This needs to include first time offenders also. Approxi- 
mately 65% of all Medicaid funds are federal moneys. These 
payments amount to millions of dollars. 



Statement of the Subject Matter: Establish No-Wake Zone 
on Lake Norman in Iredell County. 

Reason for Proposed Action: To regulate boat speed in 
congested area. 

Comment Procedures: The record will be open for receipt 
of written comments from July 15, 1996 through September 
13, 1996. Such written comments must be delivered or 
mailed to the North Carolina Wildlife Resources Commis- 
sion, 512 N. Salisbury Street, Raleigh, NC 27604-1188. 



Comment Procedures: Written comments concerning this 
rule-making action must be submitted by September 13, 1996 
to Portia Rochelle, APA Coordinator, Division of Medical 
Assistance, 1985 Umstead Drive, Raleigh, NC 27603. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

\Totice of Rule-making Proceedings is hereby given by 
1 V the North Carolina Wildlife Resources Commission in 
accordance with G.S. 150B-21.2. The agency shall subse- 
quently publish in the Register the text of the rule(s) it 
proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15 A NCAC 1 OF .0307. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 75A-3; 75A-15; S.L 
1965, ch. 1205 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



451 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency must 
publish a notice of rule-making proceedings. The agency must accept comments on the proposed rule for at least 30 
days from the publication date, or until the public hearing, or a later date if specified in the notice by the agency. The 
required comment period is 60 days for a rule that has a substantial economic impact of at least five million dollars 
($5,000,000). Statutory reference: G.S. I50B-21.2. 



TITLE 10 - DEPARTMENT OF HUMAN RESOURCES 

Notice is hereby given in accordance with G.S. 150B-21.2 that the Division of Facility Services intends to amend rules 
cued as 10 NCAC 3R .3001, .3010, .3020, .3030, .3032, .3040, .3050. These rules were filed as temporary rules and 
published in the Register on February 1, 1996. Publication of the temporary rules served as notice of rule-making 
proceedings. 

Proposed Effective Date: February 1, 1997 

A Public Hearing will be conducted at 10:30 a.m. on August 14, 1996 at the Council Building, Room 201, Dorothea Dix 
Campus, 701 Barbour Drive, Raleigh, NC. 

Reason for Proposed Action: To adopt as permanent rules the temporary rules that established the 1996 State Medical 
Facilities Plan. Publication of the temporary rules appeared in the NC Register dated February 1, 1996. The text is identical 
to the text published in the Register with the exception of Rule .3030(8)(a)-(d). 

Comment Procedures: Questions or written comments regarding this matter may be direaed to Mr. Jackie Sheppard, APA 
Coordinator, Division of Facility Services, 701 Barbour Drive , PO Box 29530, Raleigh, NC 27626-0530. Written comments 
will be accepted up to and including September 13, 1996. 

Fiscal Note: These Rules affect the expenditures or revenues of local government funds and the expenditure or distribution 
of State funds subject to the Executive Budget Act, Article 1 of Chapter 143. These Rules do have a substantial economic 
impaa of at least five million dollars ($5,000,000) in a 12-month period. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTinCATE OF NEED REGULATIONS 

SECTION .3000 - STATE MEDICAL FAdLITIES PLAN 

.3001 CERTIFICATE OF NEED REVIEW CATEGORIES 

The agency has established nine categories of facilities and services for certificate of need review and will determine the 
appropriate review category or categories for all applications submitted pursuant to 10 NCAC 3R .0304. For proposals 
which include more than one category, the agency may require the applicant to submit separate applications. If it is not 
practical to submit separate applications, the agency will determine in which category the application will be reviewed. The 
review of an application for a certificate of need will commence in the next review schedule after the application has been 
determined to be complete. The nine categories of facilities and services are: 

(1) Category A. Proposals for acute health service facilities, except those proposals included in Categories B through 
H, including but not limited to the foUowing types of projects: renovation, construction, equipment, and acute care 
services. 

(2) Category B. Proposals for long-term nursing facility and new continuing care facilities applying for exemption 
under 10 NCAC 3R .3050 (\i){2). 

(3) Category C. Proposals for new psychiatric facilities; psychiatric beds in existing health care facilities; new 
intermediate care facilities for the mentally retarded (ICF/MR) and ICF/MR beds in existing health care facilities; 
new substance abuse and chemical dependency facilities; substance abuse and chemical dependency beds in existing 
health care facilities. 

(4) Category D. Proposals for new or expanded end stage ronal disease treatment facilities; dialysis stations in 
response to the "county need" or "facility need" methodologies; and relocations of existing dialysis stations to 
another county. 



452 NORTH CAROLINA REGISTER July 15, 1996 11:8 



PROPOSED RULES 



(5) Categoiy E. Proposals for new or expanded inpatient rehabilitation facilities and inpatient rehabilitation beds in 
other health care facilities; and new or expanded ambulatory surgical facilities except those proposals included in 
Category H. 

(6) Category F. IVoposals for new home health agencies or offices, new hospice home care programs, new hospice 
inpatient beds, and new hospice residential beds. 

(7) Category G. Proposals for converting hospital beds to nursing care under 10 NCAC 3R .3050 (b)(1); and for 
domonotmtion projooto dooignat e d in tho SMFP. new dialysis stations as the result of "adjusted need determina- 
tions" for Dare and Carteret counties. 

(8) Category H. Proposals for bone marrow transplantation services, bum intensive care services, neonatal intensive 
care services, open heart surgery services, solid organ transplantation services, air ambulance equipment, cardiac 
angioplaotio angioplasty equipment, cardiac catheterization equipment, heart-lung bypass maohino, - machines. 
gamma knife, knives, lithotriptors, magnetic resonance imaging aconnor, scanners, positron emission tomography 
scaimers, and major medical equipment as defined in G.S. 131E-176(14f), diagnostic centers as defined in G.S. 
131E-176(7a), and oncology treatment centers as defined in G.S. 131E-176(18a). 

(9) Category I. Proposals involving cost overruns; expansions of existing continuing care facilities which are licensed 
by the Department of Insurance at the date the application is filed and are applying under exemptions from need 
determinations in 10 NCAC 3R .3030; relocations within the same county of existing health service facilities, beds 
or dialysis stations which do not involve an increase in the number of health service facility beds or stations; 
reallocation of beds or stations; Category A profKJsals submitted by Academic Medical Center Teaching Hospitals 
designated prior to January 1, 1990; proposals submitted pursuant to 10 NCAC 3R .3050(a)(3) by Academic 
Medical Center Teaching Hospitals designated prior to January 1, 1990; and any other proposal not included in 
Categories A through H. 



Authority G.S. 131E-176(25); 13 IE- 177(1); 131E-183(b). 

.3010 MULTI-COUNTY GROUPINGS 

(a) Health Service Areas. The agency has assigned the counties of the state to the following health service areas for the 
purpose of scheduling applications for certificates of need: 

HEALTH SERVICE AREAS (HSA) 



I 


U 


m 


IV 


V 


VI 


County 


County 


County 


County 


County 


County 


Alexander 


Alamance 


Cabarrus 


Chatham 


Anson 


Beaufort 


Alleghany 


Caswell 


Gaston 


Durham 


Bladen 


Bertie 


Ashe 


Davidson 


Iredell 


Franklin 


Brunswick 


Camden 


Avery 


Davie 


Lincoln 


Granville 


Columbus 


Carteret 


Buncombe 


Forsyth 


Mecklenburg 


Johnston 


Cumberland 


Chowan 


Burke 


Guilford 


Rowan 


Lee 


Harnett 


Craven 


Caldwell 


Randolph 


Stanly 


Orange 


Hoke 


Currituck 


Catawba 


Rockingham 


Union 


Person 


Montgomery 


Dare 


Cherokee 


Stokes 




Vance 


Moore 


Duplin 


Clay 


Surry 




Wake 


New Hanover 


Edgecombe 


Cleveland 


Yadkin 




Warren 


Pender 


Gates 


Graham 








Richmond 


Greene 


Haywood 








Robeson 


Halifax 


Henderson 








Sampson 


Hertford 


Jackson 








Scotland 


Hyde 


McDowell 










Jones 


Macon 










Lenoir 


Madison 










Martin 


Mitchell 










Nash 


Polk 










Northampton 


Rutherford 










Onslow 


Swain 










Pamlico 


Transylvania 










Pasquotank 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



453 



PROPOSED RULES 



Watauga Perquimans 

Wilkes Pitt 

Yancey Tyrrell 

Washington 

Wayne 

Wilson 



(b) Mental Health Planning Areas. The agency has assigned the counties of the state to the following Mental Health 
Planning Areas for purposes of the State Medical Facilities Plan: 

MENTAL HEALTH PLANNING AREAS 



Area Number Constituent Counties 



1 Jackson. Haywood, Macon. Cherokee. Clay. Graham. Swain 

2 Buncombe. Madison. Mitchell. Yancey 

3 Alleghany. Ashe. Ayery, Watauga. Wilkes 

4 Transylvania. Henderson 

5 Caldwell. Burke. Alexander. McDowell 

6 Rutherford. Polk 
2 Cleyeland 

8 Gaston. Lincoln 

9 Catawba 

10 Mecklenburg 

11 Rowan, Iredell. Davie 

12 Stanly, Cabarrus. Union 
O Surry. Yadkin 

14 Forsyth. Stokes 

15 Rockingham 

16 Guilford 

17 Alamance. Caswell 

18 Orange, Person. Chatham 

19 Durham 

20 Vance. Granville, Franklin. Warren 

21 Davidson 

22 Moore, Hoke. Richmond. Montgomery. Anson 

23 Robeson. Bladen. Scotland. Columbus 

24 Cumberland 

25 Lee. Harnett 

26 Johnston 

27 Wake 

28 Randolph 

29 New Hanover. Brunswick. Pender 

30 Onslow 

31 Wayne 

32 Wilson. Greene 

33 Edgecombe. Nash 

34 Halifax 

35 Craven. Jones. Pamlico. Carteret 

36 Lenoir 

37 Pitt 

38 Hertford. Bertie. Gates. Northampton 

39 Beaufort. Washington. Tyrrell. Hyde. Martin 

40 Pasquotank. Chowan. Perquimans. Camden. Dare. Currituck 



454 NORTH CAROLINA REGISTER July 15, 1996 11:8 



PROPOSED RULES 



41 Duplin. Sampson 



(c) Mental Health Planning Regions. The agency has assigned the counties of the state to the following Mental 
Health Planning Regions for puqaoses of the State Medical Facilities Plan: 



MENTAL HEALTH PLANNING REGIONS (Area Number and Constituent Counties') 



Western (W) 



\ - Jackson, Haywood. Macon, Cherokee, Clay, Graham, Swain 

2 z Buncombe. Madison, Mitchell, Yancey 

3 ; Alleghany, Ashe, Ayery, Watauga, Wilkes 

4 ; Transvlyania, Henderson 

5 ; Caldwell. Burke. Alexander. McDowell 

6 - Rutherford, Polk 

7 - Cleveland 

8 ; Gaston, Lincoln 

9 ; Catawba 

10 ; Mecklenburg 

11 ; Rowan. Iredell. Davie 

12 ; Stanly. Cabarrus. Union 

North Central (NO 



13 - Surry. Yadkin 

14 ; Forsyth. Stokes 

15 ; Rockingham 

16 ; Guilford 

17 ; Alamance. Caswell 

18 ; Orange. Person. Chatham 

19 ; Durham 

20 ; Vance. Granville, Franklin, Warren 



South Central (SC) 



21 ; Davidson 

22 ; Moore, Hoke. Richmond, Montgomery, Anson 

23 z Robeson, Bladen, Scotland, Columbus 

24 2 Cumberland 

25 2 Lee, Harnett 

26 2 Johnston 

27 - Wake 

28 - Randolph 

Eastern (E) 



29 ; New Hanover, Brunswick, Pender 

30 ; Onslow 

31 ; Wayne 

32 ; Wilson, Greene 

33 ; Edgecombe, Nash 

34 - Halifax 

35 ; Craven, Jones. Pamlico. Carteret 

36 ; Lenoir 

37 - Pitt 

38 ; Hertford. Bertie. Gates. Northampton 

39 ; Beaufort. Washington. Tyrrell. Hyde. Martin 



11:8 NORTH CAROLINA REGISTER July 15, 1996 455 











PROPOSED RULES 




40 
ii 


- Pasquotank, Chowan, 

- Duplin, Sampson 


Perquimans, 


Camden, 


Dare, 


Curritxick 



Authority G.S. 13 IE- 176(25); 131E-177(I); 13 IE- 183(1). 

.3020 CERTIFICATE OF NEED REVIEW SCHEDULE 

The agency has established the following schedule for review of categories and subcategories of facilities and services 
mi99&r 1996. 

(1) Category B. Subcategory Lxing-Term Nursing Facilities. 



County 



|-{g \ 



CON Beginning 
Review Date 



Alexander 
Coldwoll — 



Graham 



Transylvania 



Randolph 
Moor e 



Gfavea- 



Camd e n - 



Cortcrot 
Jones 



H¥4e- 



Gat e n 



Perquimans 

Henderson 

McDowell 

Rutherford 

Watauga 

Alamance 

Lee 

Wake 

Brunswick 

Cumberland 

New Hanover 

Pender 

Beaufort 

Onslow 

Pitt 



-a- 



-V- 



-v^ 



-Vi- 



-vt- 



-Vi- 



-Vi- 



A^ 



-s/t- 



Fobruan' 1, 1995 April 1, 1996 
April 1, 1995 



April 1, 1995 
August 1. 1995 



August 1, 1995 
May 1, 1995 



March 1, 1995 



S e pt e mb e r 1, 1995 



September 1, 1995 
March 1, 1995 



May 1. 1995 



December 1, 1995 



Dccombor 1, 1995 



April 1, 1996 
August 1, 1996 
March h, 
March 1, 



1996 



1996 

August 1, 1996 
September 1, 1996 
May 1, 1996 
December 1. 1996 
December 1. 1996 
September 1. 1996 
May 1, 1996 
December 1. 1996 
March 1, 1996 
May 1, 1996 



(2) Category C. 

(a) Subcategory Intermediate Care Facilities for Mentally Retarded. 



Mental Health Planning Areas (Constituent Counties) 
Count\' 



CON Beginning 
HSA Review Date 



Buncomb e , Madison. Mitch e ll, Yanc e y 

jMleghany. Ashe. Avcr>'. Watauga, Wilkes 
Caldwell, Burko, ^Alexander, McDowell 



Rutherford. 



-42elk 



Forsyth. Stoke s 



Guilford 



Davidson 



Gaston, Lincoln 



-t- 



-B^ 



-S- 



S- 



Octob e r 1 



October 1 



October 1 



October 1 



October 1 



October 1 



October 1 



Octob e r 1 



4995 



■i99§ 



4^9# 



4^»9# 



4-99# 



-^99& 



■W9# 



■im& 



456 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



Stanly, Caborrua, Union — 
Orang e , Poroon, Chatham 



Robooon. Bladen, Sootlond, Columbuo 



Cumberland 

Now Hanover, Brunawick, Ponder 



Edgooombo, Naoh 
Pitt 



Hertford, Bortio, Gates, Northampton 

Poaquotanlt, Chowan, Perquimans, Camd ^tr 



Dare, Currituok 

2 (Buncombe, Madison, Mitchell. Yancey) 

3 (Alleghany, Ashe, Avery, Watauga. Wilkes) 
5 (Caldwell, Burke, Alexander, McDowell) 
21 (Davidson) 

10 (Mecklenburg) 

12 (Stanley, Cabarrus, Union) 

18 (Orange, Person, Chatham) 

35 (Craven, Jones, Pamlico, Carteret) 



^ 



■4V- 



■Ai- 



-Vt- 



-Vt- 



-vt- 



-vt- 



Octobor 1, 1995 



Novemb e r 1, 1995 



Novemb e r I, 1995 



November 1, 1995 



November 1, 1995 



Nov e mb e r 1, 1995 



November 1, 1995 



November 1, 1995 



November 1, 1995 



April 1, 1996 
December 1, 1996 
December 1, 1996 
October 1, 1996 
April 1, 1996 
October 1, 1996 
November 1, 1996 
July 1, 1996 



(b) Subcategory Detox-Only Beds. 



Mental Health Planning Areas (Constituent Counties) 



CON Beginning 
Review Date 



I (Jackson. Haywood, Macon, Cherokee, Clay, Graham, Swain) 

4 (Transylvania. Henderson) 

5 (Caldwell, Burke. Alexander. McDowell) 

6 (Rutherford. Polk) 

8 (Gaston, Lincoln) 

9 (Catawba) 

I I (Rowan. Iredell, Davie) 

13 (Surry. Yadkin) 

14 (Forsyth, Stokes) 

15 (Rockingham) 

16 (Guilford) 

17 (Alamance, Caswell) 

18 (Orange, Person, Chatham) 

20 (Vance. Granville. Franklin. Warren) 

21 (Davidson) 

23 (Robeson. Bladen, Scotland, Columbus) 

24 (Cumberland) 

25 (Lee, Harnett) 

26 (Johnston) 

27 (Wake) 

28 (Randolph) 

31 (Wayne) 

32 (Wilson. Greene) 

33 (Edgecombe. Nash) 

34 (Halifax) 

35 (Craven, Jones, Pamlico, Carteret) 

36 (Lenoir) 

38 (Hertford. Bertie. Gates. Northampton) 

39 (Beaufort. Washington. Tyrrell. Hyde. Martin) 

40 (Pasquotank. Chowan, Perquimans, Camden, Dare, Currituck) 

41 (Duplin. Sampson) 



1996 
1996 
1996 
1996 
1996 
1996 
1996 



December \^ 
December l^ 
December Xi 
December \^ 
December Xi 
December \^ 
December Xi 
June 1. 1996 
June 1, 1996 
June 1, 1996 
June 1, 1996 
June 1. 1996 
June 1, 1996 
June 1, 1996 
November 1^ 
November \^ 

November Xi 

November 1, 1996 
November L 1996 



1996 
1996 
1996 



November L, 
November 1^ 
May 1, 1996 
May 1, 1996 
May 1, 1996 
May 1, 1996 
May 1, 1996 
May 1, 1996 
May 1. 1996 
May 1, 1996 
May 1, 1996 
May 1, 1996 



1996 
1996 



(3) Category D. Subcategory End Stage Renal Disease Dialysis Stations. Dialysis station review in response to the 
"county need" or "facility need" methodologies shall be conducted under the provisions of 10 NCAC 3R .3032. 



NORTH CAROLINA REGISTER 



My 15, 1996 



457 



PROPOSED RULES 



(4) Catogof)' E. — Subcategory ;\mbulatory Surgical Facilitios 



Count>' 



44SA- 



CQN B e ginnirig 
— Roviow Date 



Clovoland 



April 1. 1095 



(4)f§-) Category F. Subcategory Home Health Agencies or Offices. 



Count)' 



HSA 



CON Beginning 
Review Date 



Watauga 



October 1, 1995 



Forsyth 
Stok e s — 



Juno 1, 1995 



-*- 



Octob e r 1, 1995 



Orang e 
Woke 



-*V- 



Nov e mb e r 1, 1995 



-4V- 



July 1, 1995 



Bortio 



-Vt- 



Onslow 



-VI- 



July 1, 1995 
November 1, 1995 



I 

n 

ffl 
lY 

V 

VI 



October 1. 1996 
March 1, 1996 
June 1, 1996 
November 1. 1996 
March 1. 1996 
July 1. 1996 



(5) Category G. Subcategory New Dialysis Stations as a result of "Adjusted Need D eterminations. " 



County 


CON Beginning 
Review Date 


Carteret 
Dare 


March 1, 1996 
March 1, 1996 



(6) Applications for certificates of need will be reviewed pursuant to the following review schedule, unless another 
schedule has been specified in subparagraphs one through five of this rule or it has been determined in 10 NCAC 
3R .3030 that there is no need for the health service or facility proposed by the applicant. 



CON Beginning 


HSA 




HSA 


Review Date 


I, n, m 




IV, V, VI 


January 1 










February 1 


A, B, G, I - 




6;; 


March 1 


A^ElEl 


G,I 


A, B, EtF^G^I 


April 1 


B,^ H, 1 




- 


May 1 


- 




B, C^ H, I 


June 1 


A, C^D, I, F 




D 


July 1 


-- 




A, F, I 


August 1 


B, E, I 




-- 


September 1 


-- 




B, E, I 


October 1 


A, Gt F, I 




-- 



458 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



November 1 - A, C, F, I 

December 1 C, D, H, I B, D, H, I 



{uthority G.S. 131E-176(25); 131E-177(1); 131E-183(b). 

3030 FACILITY AND SERVICE NEED DETERMINATIONS 

Facility and service need determinations are shown in Items (1) - (8) of this Rule. The need determinations shall be 
■evised continuously throughout W9§ 1996 pursuant to 10 NCAC 3R .3040. 

(1) Category A. Acute Health Service Facilities. It is determined that there is no need for additional acute care beds 
and no reviews are scheduled. 

(2) Category B. Long-Term Nursing Facility Beds, {tt) It is determined that the counties listed below need additional 
Long-Term Nursing Facility Beds as specified. There is no need for additional Long-Term Nursing Facility Beds 
in other counties and no other reviews are scheduled. 



Number of Nursing 
County HSA Beds Needed 



Alexander I 30 30 

Caldwell \ 60 

Transylvania ! 30 

Randolph H 70 

Moor e V 70 

Craven VI §0 

Camd e n VI \Q 

Cart e r e t VI §0 

Henderson 90 

McDowell 30 

Rutherford 40 

Watauga 20 

Alamance 90 

Lee 30 

Wake 120 

Brunswick 60 

Cumberland 90 

New Hanover 90 

Pender 30 

Beaufort 30 

Onslow 40 

Pitt 60 



{fe) It is pr e sum e d that op e ration of a n e w long t e rm nursing faoilit)' with a capacity of only 10 b e ds (as 

contrasted with an addition to an existing facility, or conversion of hospital or homo for the aged bed s ) i s 
not financially feasible under usual circumstonoos. — Camden County lacks such facilities for expansion or 

conv e r s ion. N e v e rth e l ess , — the need d e t e rmination shown in this Plan provid e s on opportunity for 

d e v e lopm e nt of this capacity within Camd e n County if sp e cial m e asures for assuring financial foaaibilit)' 
(such as philanthropic, religiou s , fraternal or public body financial assistxince) can be demonstrated. 
Applications to develop Camdon County's need determination in a contiguous county shall also bo 
consid e r e d. — Any such application shall confirm that admission priority' shall bo given to patient s from 
Camd e n Count)', up to th e numb e r of b e ds in the need det e rmination, and conditions attach e d to th e award 
of any resulting certificate of need shall stipulate how this admission preforonce is to bo assured. — It is the 
intent of this provision that consideration of any proposed altomativo site shall give duo regard to the 
conv e ni e nc e of its us e by citiz e ns of Camd e n County, as applicabl e . — Conv e ni e nc e includ e s th e e xt e nt to 
which visito to patients are lik e ly to b e facilitat e d by usual patt e rns of citiz e n trav e l associat e d with obtaining 
goods and services and employment. — Any county' s bod s urplu s or d e ficit i s deemed irrelevant to its 



11:8 NORTH CAROLINA REGISTER July 15, 1996 459 



PROPOSED RULES 



(b) 



soloction 00 an altomativo location for tho transfer of this OQpQoit)^ 
(3) Category C. 

(a) Psychiatric Facility Beds. It is determined that there is no need for additional psychiatric beds and no 
reviews are scheduled. 

Intermediate Care Faoilitioa Facility Beds for the Mentally Retarded. Rotardod Bods. It is determined that 
the counti e s mental health planning areas listed b e low in the following table need additional Intermediate 
Care FaciUty beds for the Mentally Retarded ("ICF/MR beds"). (ICF/MR) as op e oifi e d. The table identifies 
the number of new child and adult ICF/MR beds needed by each of the listed planning areas. These new 
ICF/MR beds shall only be used to convert existing five-bed ICF/MR beds into six-bed facilities. There 
is no need for new ICF/MR facilities or for ICF/MR facilities with more than six beds in these planning 
areas. There is no need for any additional ICF/MR Beds in any other oountioo mental health planning areas 
and no other reviews are scheduled, scheduled, except as provided in Rule 10 NCAC 3R ■3040(a')(8'). 



CountioB Mental Health Planning Area (Constituent Counties) 



]-jg A^ 



Need 
Determination 



Child 



Adult 



2 (Buncombe, Madison, Mitchell, Yanceyl 

3 (Alleghany, Ashe, Avery, Watauga, Wilkesl 
5 (Caldwell, Burke, Alexander, McDowell^ 
Rutherford, Polk 



-61 



-6 1 



Forsyth, Stokeo 
Guilford 



-^ 



S- 



21 (Davidson} 
Gaston. Lincoln 



-m- 



■430 
9- 



10 (Mecklenburg) 

12 (Stanly, Cabarrus, Union} 

18 (Orange, Person, Chatham} 

35 (Craven, Jones, Pamlico, Carteret) 

Rob e son, Bladen, Scotland, Columbus 



ffl- 

— V- 



1 

-©i 

2 

— 0- 



Cumbcrland 



-e- 



New Hanover, Brunswick, Ponder 



Edg e comb e , Nash 



-V4- 



ft«- 



-Vt- 



Hertford, Bertie, Gates, Northampton 
Pasquotank, Chowan, Perquimans, 
Camd e n, Dar e , Currituck 



-V:^- 



1 

1 



— 

— 6 

— 8 

3i 

-A% 



^2 

^1 

— 6 
— 8 
— 
— 6 
— 6 
— 6 



-Vt- 



-9 



(c) Chemical Dependency Treatment Beds. 

(i) It is determined that there is no need for any additional chemical dependency treatment beds and no 
r e vi e ws ar e sch e dul e d, other than detox-only beds for adults. The following table lists the mental 
health planning areas that need detox-only beds for adults and identifies the number of such beds 
needed in each planning area. There is no need for additional detox-only beds for adults in any other 
mental health planning areas. No other reviews for chemical dependency treatment beds are 
scheduled. 



Mental Health Planning Areas Mental Health 


Number of 


Detox-Only 


(Constituent Counties) Planning Regions 


Beds Needed 1 


1 (Jackson, Haywood, Macon, Cherokee, Clay, Graham, Swain) W 




10 


4 (Transylvania, Henderson) W 




10 


5 (Caldwell. Burke, Alexander, McDowell) W 




1 


6 (Tlutherford, Polk) W 




10 


8 (Gaston, Lincoln) W 




20 


9 (Catawba) W 




8 



460 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



n rRowan. Iredell. Davie) W 10 

13 rSurrv. Yadkin) > NC 2 

14 fForsyth. Stokes) NC 10 

15 (Rockingham) NC 10 

16 (Guilford) NC 10 

17 (Alamance. Caswell) NC 6 

18 (Orange. Person. Chatham) NC 2 

20 (Vance. Granville. Franklin. Warren) NC 10 

21 (Davidson) SC 10 

23 (Robeson. Bladen. Scotland. Columbus) SC 5 

24 (Cumberland) SC 10 

25 (Lee. Harnett) SC 10 

26 (Johnston) SC 7 

27 (Wake) SC 10 

28 (Randolph) SC 4 

31 (Wayne) E 10 

32 (Wilson. Greene) E 10 

33 (Edgecombe. Nash) E 6 

34 (Halifax) E 10 

35 (Craven. Jones. Pamlico. Carteret) E 10 

36 (Lenoir) E 10 

38 (Hertford. Bertie. Gates. Northampton) E 4 

39 (Beaufort. Washington. Tyrrell. Hyde. Martin) E 5 

40 (Pasquotank. Chowan. Perquimans. Camden. Dare. Currituck) E 10 

41 (Duplin. Sampson) E JO 



(ii) "Detox-only beds for adults" are chemical dependency treatment beds that are occupied exclusively 

by persons who are eighteen years of age or older who are experiencing physiological withdrawal 

from the effects of alcohol or other drugs. 
(iii) The county or counties which comprise each mental health planning area are listed in 10 NCAC 3R 

■ 3010(b). 
(iv) Detox-only beds for adults may be developed outside of the mental health plamiing area in which they 

are needed if: 

(A) The beds are developed in a contiguous mental health planning area that is within the same 
mental health planning region, as defined by 10 NCAC 3R ■3010(c); and 

(B) The program board in the planning area in which the beds are needed and the program board 
in &e planning area in which the beds are to be developed each adopt a resolution supporting 
the development of the beds in the contiguous planning area. 

(4) Category D. End Stag e R e nal Kidney Disease Treatment Faoiliti e a Centers and Dialysis Stations Need for ead- 
atago ronal dialysis facilitioB or stations stations, except as otherwise provided in Paragraph (7) of this Rule, is 
determined as is provided in by 10 NCAC 3R .3032. 

(5) Category E. 

(a) Inpatient Rehabilitation Facility Beds. 

(i) Except as provided in Sub-item (ii) of this Item. It it is determined that there is no need for any 

additional inpatient rehabilitation facility beds and no reviews are scheduled. 
(ii) It is determined that there is a need for a demonstration project consisting of one inpatient 
rehabilitation unit containing no more than ten inpatient rehabilitation facility beds in Wilson County. 
The purpose of the project shall be to demonstrate whether such a unit is viable in terms of cost, 
utilization, and good medical practice; whether such a unit increases the utilization of inpatient 
rehabilitation services by patients who could benefit from such services; and whether such a unit 
improves patient outcomes. An application for a certificate of need for the demonstration project 
shall: 

(A) Conform to the requirements of the rules in 10 NCAC 3R .2800. with the exception of 10 
NCAC 3R ■2803(b); 

(B) Demonstrate that the project's rehabilitation services beds shall be developed solely by the 
conversion of existing licensed health service facility beds; 

(C) Demonstrate that the project's rehabilitation services beds shall be licensed, certified, and 



NORTH CAROLINA REGISTER July 15, 1996 461 



PROPOSED RULES 



placed into operation within 12 months after the certificate of need is issued: 
(D) Contain the applicant's commitment to submit to the Certificate of Need Section three annxial 
reports on the operation of the demonstration project. The annual report shall be postmarked 



on or before the thirtieth day following the anniversary of the licensing of the demonstration 
project and shall contain the following information: 

(I) The demonstration project's average per diem patient charges for the past year: 
(TT) The demonstration project's average per discharge patient charges for the past year: 

(III) An accounting of the operational costs and patient revenues of the demonstration proiect 
for the past year: 

(IV) The total number of patients served by the demonstration proiect during the past year;^ 



(V) A list of the demonstration project's patient payor sources for the past year: 
("VI) A description of the demonstration project's patient origin by county for the past year: 

and 
(VII) An assessment of patient outcomes in the demonstration project during the past year. 



The target average annual occupancy rate for the demonstration proiect is the average of the average annual 



occupancy rates reported by or for all existing inpatient rehabilitation facilities or units in their 1996 license 



renewal applications. The demonstration project shall meet or exceed this target average annual occupancy 



rate during at least one period of J2 consecutive calendar months within five years after the demonstration 



project is licensed. If it does not, the demonstration project shall be terminated automatically and the beds 
shall revert to their prior health service facility bed category. Additionally, the rehabilitation facility beds 
shall automatically revert to their prior health service facility bed category if the applicant voluntarily 
terminates the demonstration project. 

(b) Ambulatory Surgery Operating Rooms. It is determined that th e re io nood for two additional ambulatory 
surgery operating rooma in Clovolond County. — Thoro there is no need for additional ambulatory surgery 
operating rooms in othor countie s and no othor reviews are scheduled, except that a Rural Primary Care 
Hospital designated by the N.C. Office of Rural Health Services pursuant to Section 1820(f) of the Social 
Security Act may apply for a certificate of need to convert existing operating rooms for use as a freestanding 
ambulatory surgical facility. 
(6) Category F. 

(a) New Home Health Agencies or Offices. It is determined that the counti e s Health Service Areas identified 
in 10 NCAC 3R .3010 and listed below need additional Home Health Agencies or Offices as specified. 
There is no need for additional Homo Health Agonoios or Offiooa in othor counties and no othor reviews 
are scheduled. 



County HSA Number of Agencies 

or Offices Needed 



Watauga 1 !- 

For s yth H J- 

Stokes H 1 

Orange W 1- 

Wake tV 5 

Bertie VI 1 

Onslow VI 1 

I 1 

fl 1 

ffl 1 

IV 1 

Y 1 

VI 1 



(b) New Hospice Home Care Programs. It is determined that there is no need for additional Hospice Home 
Care Programs and no reviews are scheduled. 

(c) New Hospice Inpatient Beds. 

(i) Single Counries. Single counties with a projected deficit of six or more beds are allocated beds based 
on the projected deficit. It has boon dotorminod that Forsyth County has a need for fourtoon Hospic e 



462 NORTH CAROLINA REGISTER July 15, 1996 11:8 



PROPOSED RULES 



Inpatient Bodo. — Thoro It is determined that there is no need for additional single county Hospice 
Inpatient Bed facilities and no oth e r reviews are scheduled, 
(ii) Contiguous Counties. It hoc b ee n is determined that any combination of two or more contiguous 
counties taken from the following list shall have a need for new hospice inpatient beds if the 
combined bed deficit for the grouping of contiguous counties totals six or more beds. Each county 
in a grouping of contiguous counties must have a deficit of at least one and no more than five beds. 
TTie need for the grouping of contiguous counties shall be the sum of the deficits in the individual 
counties. For purposes of this rule, "contiguous counties" shall mean a grouping of North Carolina 
counties which includes the county in which the new hospice inpatient facility is proposed to be 
located and any one or more of the North Carolina counties which have a common border with that 
county, even if the borders only touch at one point. No county may be included in a grouping of 
contiguous counties unless it is listed in the following table: 



County 



4*SA 



Hospice Inpatient 
Bed Deficit 



Alexander 

Ashe 
Av e r)' 



Haywood 

Mitchell 

Polk 

Rutherford 

Transylvania 

Watauga 

Wilk e s 



Alamance 

Davidson 

Rockingham 

Stokes 

Surry 

Cabarrus 

Gaston 

Iredell 

Lincoln 

Rowan 

Stanly 

Union 

Chatham 

Durham 

Johnston 

Lee 

Wake 

Bladen 

Brunswick 

Columbus 

Cumb e rland 



Harnett 

Moore 

Pender 

Richmond 

Robeson 

Scotland 

Bertie 

Craven 

Duplin 

Edgecombe 



S 
B 
B 
B 
B 

m 

ffi 

m 
ffi 
m 
ffi 
ffi 

IV 
IV 
IV 

IV 
V 

V 

V 

-V— 



V 

V 

V 

V 

V 

VI 

VI 

VI 

VI 



3-3 



2 

3-3 

4-2 

34 

4-2 

54 



31 
+ 2 
35 

S4 



NORTH CAROLINA REGISTER 



My 15, 1996 



463 



PROPOSED RULES 



Hertford Vi 1 

Nash A5 1 

Northampton VI 1 

Onslow Vi 1 

Pitt VI 1 

Wilson VI 1 



(7) Category G. Psyohiatrio/Subatanco Abuse Etomonstmtion Projoct. Kidney EHsease Treatment Facilities and Dialysis 



Stations. It is determined that Carteret and Dare Counties have a need for additional dialysis stations that is not 
revealed by the standard need methodology in jO NCAC 3R .3032 because of conditions unique to these two 
counties. The dialysis station need in Carteret and Dare Counties is shown in the following table: 



County Number of New 

Dialysis Stations Needed 



Carteret 6 

Dare 4 



(a) It is dotermin e d that no mor e than fifty b e do. in a froo standing facility, or e n ee ded for a domonotration of 



^ 



tho effcctivonosa and oconomy of the troatmont, in tho saiaa facility and tborapoutio miliou, of poraona with 
addictions and persona with psychiatric diaordora auch as aro ovidonccd by compulsive bohaviora. 
Such a d e monstration shall inoorpomt e th e oono e pt of oloood groups; that is, "oloBs e o" of pationto e nt e ring 
and l e aving treatm e nt oonourr e ntlv. oo oo to faoilitato tho rooover>' inducing osp e ctg of th e interaction of 



and l e aving treatm e nt concurr e ntly, oo ao to facilitate tho recovery inducing asp e cts of th e interaction of 
members of therapeutic groupa. — The treatment proposed to bo offered in the demonstration alao ahall 



intogmto a cognitively based therapeutic program with a 12 step recovery model, a treatment modality based 
on th e m e thod of treatm e nt of Alcoholics i\nonymous v i 'hich uses twelv e fundam e ntal prinoiplos as guid es 



to th e proc e ss of p e rsonal chang e that is r e quir e d to achi e v e sobri e ty. 
fe) Persons proposing to meet this need must provide, in their applications for a certifioat e of nood, ovidonco 



of their experience, ability and commitment not only to provide ser^'icea as dosoribod above, but to 
demonstrat e th e applicability of those and oth e r innovations to th e broad e r th e rap e utic oommunity ^ — Such 



e videnc e shall includ e : 
(+) — A written agreement with a university affiliated professional to design and oversee periodic or 



continuing determinations of tho effectiveness of treatment provided in the demonstration, and tho 
publication of th e r e sults. 
(ii) A writt e n agre e m e nt with a univ e rsity affiliat e d prof e ssional from an aoad e mio m e dical center that 



establishes tho willingness and intent of such professional to engage in a clinical relationship with the 
demonstration facility. 
(444) A writt e n statem e nt that at l e ast t e n p e rc e nt of the pati e nts of th e d e monstration facility will b e 



indig e nt p e rsons, who will b e provid e d fr ee cor e , 
ftv) A commitment to provide to the Certificate of Need Section annual reports of tho average per diem 



and per discharge patient charges, tho total number of patients aep i 'ed, and tho number of free cor e 
pati e nts. Such reports will b e du e thirty days following th e first, s e cond and third anniv e rsary dat es 



of th e lic e nsur e of th e facility, 
(d) The number of beds for which a certificate of nood is granted will not bo counted in tho State Medical Facility 



Plan' s inventor)' of psychiatric or substance abuse beds in the mental health area or region in which the facility 
is to b e locat e d, or in any oth e r area or r e gion of th e stat e . 
(^ — Pur s uant to th e provisions of 10 NCAC HK. 0216, th e Director of the Division of Facility S e r . 'ioos shall waiv e 



any licen s ure rule which requires that substance abuse and psychiatric patients be treated in separate 
accommodations, and from all other rule s which are inconsistent with the unique character of tho demonstration 
facility, if th e appUcont for, or holder of. a C'Ortificate of need issued pursuant to this rule demonstrat e s that th e 
waiv e r will not aff e ct th e h e alth, saf e ty, or welfar e of th e pati e nts. 
(8) Category H. 

(a) Open heart surgery services. It is determined that there is no need for additional open heart surgery services 



464 NORTH CAROLINA REGISTER July 15, 1996 11:8 



PROPOSED RULES 



and no reviews are scheduled; except that a health service facility that currently provides these services may 
apply for a certificate of need to expand its existing services at its existing site or location to meet specific needs 
if utilization of the health service facility's existing open heart surgery services exceeds 80% of capacity. 

(b) Heart-Lung Bypass Machines. It is determined that there is no need for additional heart-lung bypass machines 
and no reviews are scheduled; except that a health service facility that currently provides open heart surgery 
services may apply for a certificate of need to acquire additional heart-lung bypass machinery at its existing site 
or location if the existing heart-lung machinery used by the health service facility is utilized at or above 80% 
of capacity. 

(c) Cardiac Angioplasty Equipment. It is determined that there is no need for additional cardiac angioplasty 
equipment and no reviews are scheduled; except that a health service facility that currently provides cardiac 
angioplasty services may apply for a certificate of need to acquire additional cardiac angioplasty equipment at 
its existing site or location if utilization of cardiac angioplasty equipment used by the health service facility 
exceeds 80% of capacity. 

(d) Cardiac Catheterization Equipment. It is determined that there is no need for additional fixed or mobile cardiac 
catheterization equipment and no reviews are scheduled; except that a health service facility that currently 
provides cardiac catheterization services may apply for a certificate of need to acquire additional cardiac 
catheterization equipment at its existing site or location if utilization of cardiac catheterization equipment used 
by the health service facility exceeds 80% of capacity. Mobile cardiac catheterization equipment and services 
shall only be approved for development on hospital sites. 

(e) Solid organ transplant services shall be developed and offered only by academic medical center teaching 
hospitals as designated in 10 NCAC 3R .3050(a)(3). It is determined that there is no need for new solid organ 
transplant services and no reviews are scheduled. 

(f) Bone Marrow Transplantation Services. It is determined that allogeneic bone marrow transplantation services 
shall be developed and offered only by academic medical center teaching hospitals as designated in 10 NCAC 
3R .3050(a)(3). It is determined that there is no need for additional allogeneic or autologous bone marrow 
transplantation services and no reviews are scheduled. 

(g) Gamma Knif e Equipm e nt. Knives. It is determined that there is no need for gamma knif e e quipm e nt knives 
and no reviews are scheduled. 

(h) Positron Emission Tomography Scannor. Scanners. It is determined that there is no need for additional positron 
emission tomography scanners for purposes other than research and no reviews are scheduled. 

Authority G.S. 13] £-176(25); 131E-177(1); 131E-183(b). 

.3032 DIALYSIS STATION NEED DETERMINATION 

(a) The Medical Facihties Planning Section (MFPS) shall determine need for new dialysis stations and faoilitioo two times 
each calendar year, and shall make a report of such determinations available to all who request it. This report shall be called 
the North Carolina Semiannual Dialysis Report (SDR). Data to be used for such determinations, and their sources, are as 
follows: 

(1) Numbers of dialysis patients, by type, county and facility, from the Southeastern Kidney Council, Inc. (SEKC) and 
the Mid-Atlantic Renal Coalition, Inc. as of December 31. 1995 for the March SDR and as of June 30. 1996 for 
the September SDR. 

(2) Certificate of need decisions, decisions appealed, appeals settled, and awards, from the Certificate of Need Section, 
DFS. 

(3) Facilities certified for participation in Medicare, from the Certification Section, DFS. 

(4) Need determinations for which certificate of need decisions have not been made, from MFPS records. 

Need determinations in this report shall be an integral part of the State Medical Facilities Plan, as provided in G.S. 13 lE- 
183. 

(b) Need for new dialysis stations and facilities shall be determined as follows: 
(1) County Need 

(A) The average annual rate ( % ) of change in total number of dialysis patients resident in each county from the end 

of 4990 1991 to the end of 4994 1995 is multiplied by the county's 4994 1995 year end total number of patients 

in the SDR, and the product is added to each county's most recent total number of patients reported in the SDR. 

The sum is the county's projected total 1995 1996 patients. 

CB) The percent of each county's total patients who were home dialysis patients at the end of 4994 1995 is multiplied 

by the county's projected total 4995 1996 patients, and the product is subtracted from the county's projected total 

19Q5 1996 patients. The remainder is the county's projected 4995 1996 in-center dialysis patients. 

(C) The projected number of each county's 4995 1996 in-center patients is divided by 3.2. The quotient is the 



11:8 NORTH CAROLINA REGISTER July 15, 1996 465 



PROPOSED RULES 



projection of the county's 1995 1996 in-center dialysis stations. 

(D) From each county's projected number of 1995 1996 in-center stations is subtracted the county's number of 
stations certified for Medicare, CON-approved and awaiting certification, awaiting resolution of CON appeals, 
and the number represented by need determinations in previous State Medical Facilities Plans or Semiannual 
Dialysis Reports for which CON decisions have not been made. The remainder is the county's 1995 1996 
station need projection. 

(E) If a county's 1995 1996 station need projection is ten or greater and the SDR shows that utilization of each 
dialysis facility in the county is 80% or greater, the 1995 1996 county station need determination is the same 
as the 1995 1996 station need projection. If a county's 1995 1996 station need projection is less than 10 tea^ 
or the utilization of any^ dialysis facility in the county is less than 80%, the county's 1995 1996 station need 
determination is zero. 

(2) Facility Need 
A dialysis facility located in a county whoso urunot nood for which the result of the County Need methodology is zero 
in the reference Semiannual Dialysis Report (SDR) io l e oo than t e n otationo is determined to need additional stations 
to the extent that: 

(A) Its utilization, reported in the SDR, is greater than 3.2 patients per station. 

(B) Such need, calculated as follows, is reported in an application for a certificate of need: 

(i) The facility's number of in-center homodialyoio dialysis patients reported in the previous SDR (SDR,) is 

subtracted from the number of in-center h e modialyoia dialysis patients reported in the current SDR (SDRj). 

The difference is multiplied by 2 to project the net in-center change for 1 year. Divide the projected net 

La-center change for the year by the number of in-center patients from SDR, to determine the projected 

annual growth rate, 
(ii) The quotient from Subpart ('b)(2)(B)(i) of this Rule is divided by 12. 
(iii) The quotient from Subpart (b)(2)(B)(ii) of this Rule is multiplied by the number of months from the most 

recent month reported in the current SDR until the end of calendar 1995. 1996. 
(iv) The product from Subpart (b)(2)(B)(iii) of this Rule is multiplied by the number of the facility's in-center 

patients reported in the current SDR and that product is added to such reported number of in-center patients. 
(v) TTie sum from Subpart (b)(2)(B)(iv) of this Rule is divided by 3.2, and from the quotient is subtracted the 

facility's current number of certified and pending stations as recorded in the current SDR. The remainder 

is the number of stations needed. 

(C) The facility may apply to expand to meet the need established in Subpart (b)(2)(B)(y) of this Rule, up to a 
maximum of ten stations. 

(c) The schedule for publication of the North Carolina Semiannual Dialysis Report (SDR) and for receipt of certificate 
of need applications based on each issue of this report in 1995 1996 shall be as follows: 



Date for Receipt of Publication Receipt of Beginning 

Period Ending SEKC Report of SDR CON Applications Review Dates 



Boo. 31, 199^1 — F e b. 3 8 , 1995 March 20, 1995 May 16, 1995 Jun e 1, 1995 

Juno 30, 1995 Aug. 31, 1995 — Sept. 20, 1995 Nov. 15, 1995 Doc. 1, 1995 

Dec. 31. 1995 Feb. 28, 1996 March 20, 1996 May 16, 1996 June 1, 1996 

June 30, 1996 Aug. 31, 1996 Sept. 20, 1996 Nov. 15. 1996 Dec. 1, 1996 



(d) An application for a certificate of need pursuant to this Rule shall be accepted only if it demonstrates a need by 
utilizing one of the methods of determining need outlined in this Rule. 

(e) An application for a new End Stage Renal Disease facility facility, other than applications for dialysis stations to be 
developed in Dare and Carteret Counties pursuant to NCAC 3R .3030 (7), shall not be approved unless it documents the 
need for at least 10 stations based on utilization of 3.2 patients per station per week. 

(f) Home patients will not be included in determination of need for new stations. 

Statutory Authority G.S. 13 IE- 176(25); 131E-177(1); 131E-183(b). 
.3040 REALLOCATIONS AND ADJUSTMENTS 



466 NORTH CAROLINA REGISTER July 15, 1996 11:8 



PROPOSED RULES 



(a) REALLOCATIONS. 

(1) Reallocations shall be made only to the extent that 10 NCAC 3R .3030 determines that a need exists after the 
inventory is revised and the need determination is recalculated. 

(2) Beds or services which are reallocated once in accordance with this Rule shall not be reallocated again. Rather, 
the Medical Facilities Planning Section shall make any necessary changes in the next published amendment to 10 
NCAC 3R .3030. 

(3) Dialvsis stations that are withdrawn, relinquished, not applied for or decertified shall not be reallocated. Instead, 
any necessary redetermination of need shall be made in the next scheduled publication of the Semiannual Dialysis 
Report. 

(3) {4} Appeals of Certificate of Need Decisions on Applications. Need determinations of beds or services for which the 
CON Section decision has been appealed shall not be reallocated until the appeal is resolved. 

(A) Appeals Resolved FVior to September 17: If an appeal is resolved in the calendar year prior to September 
17, the beds or services shall not be reallocated by the CON Section; rather the Medical Facilities Planning 
Section shall make the necessary changes in the next amendment to 10 NCAC 3R .3030. 

(B) Appeals Resolved On Or After September 17: If the appeal is resolved on or after September 17 in the 
calendar year, the beds or sorvicoB services, except for dialvsis stations, shall be made available for a review 
period to be determined by the CON Section, but beginning no earlier than 60 days from the date that the 
appeal is resolved. Notice shall be given by the Certificate of Need Section no less than 45 days prior to 
the due date for receipt of new applications. 

{A) Dialyaio gtationa that oro withdrov . Ti, rolinquiahod, not applied for or dcwortifiod aholl not bo roollocatod. — In g toad, 

any nccosaary rodctormiDntion of nood shall bo mndo in the next schodulod publication of tho Somionnuxil Dialysis 
R e port. 

(5) Withdrawals and Relinquishments. Except for dialysis stations, A a need determination for which a certificate of 
need is issued, but is subsequently withdrawn or relinquished, is available for a review period to be determined 
by the Certificate of Need Section, but beginning no earlier than 60 days from: 

(A) the last date on which an appeal of the notice of intent to withdraw the certificate could be filed if no appeal 
is filed, 

(B) the date on which an appeal of the withdrawal is finally resolved against the holder, or 

(C) the date that the Certificate of Need Section receives from the holder of the certificate of need notice that 
the certificate has been voluntarily relinquished. 

Notice of the scheduled review jjeriod for the reallocated services or beds shall be given no less than 45 days prior 
to the due date for submittal of the new applications. 

(6) Need Determinations for which No Applications are Received: 

(A) Services or Beds with Scheduled Review in the Calendar Year on or Before October 1 : Need determina- 
tions, or portions of such need, for services or beds in this category include long-term nursing care beds, 
home health agencies or offices, hospice home care programs, hospice inpatient beds, and beds in 
intermediate care facilities for the mentally retarded (ICF/MR) with the exception of ICF/MR need 
determinations with a scheduled review that begins after October 1. The Certificate of Need Section shall 
not reallocate the services or beds in this category for which no applications were received, because the 
Medical Facilities Planning Section will have sufficient time to make any necessary changes in the 
determinations of need for these services or beds in the next annual amendment to 10 NCAC 3R .3030. 

(B) Services or Beds with Scheduled Review in the Calendar Year After October 1 : Need determinations for 
services or beds in this category include acute care beds, psychiatric beds, substance abuse beds, ICF/MR 
beds, bone marrow transplantation services, bum intensive care services, neonatal intensive care services, 
open heart surgery services, solid organ transplantation services, air ambulance equipment, cardiac 
angioplastic equipment, cardiac catheterization equipment, heart-lung bypass maohin e , - machines, gamma 
knife, knives, lithotriptors, magnetic resonance imaging scann e r, scanners, positron emission tomography 
scanners, major medical equipment as defined in G.S. 131E-176(14f), diagnostic centers and oncology 
treatment centers for which review commences after October 1 . A need determination in this category for 
which no application has been received by the last due date for submittal of applications shall be available 
to be applied for in the second Category I review period in the next calendar year for the applicable HSA. 
Notice of the scheduled review period for the reallocated beds or services shall be given by the Certificate 
of Need Section no less than 45 days prior to the due date for submittal of new applications. 

(7) Need Determinations not Awarded because Application Disapproved. 

(A) Disapproval in the Calendar Year prioi to September 17: Need determinations or portions of such need for 
which applications were submitted but disapproved by the Certificate of Need Section before September 17, 
shall not be reallocated by the Certificate of Need Section. Instead the Medical Facilities Plaiming Section 



11:8 NORTH CAROLINA REGISTER July 15, 1996 467 



PROPOSED RULES 



shall make the necessary changes in the next annual amendment to 10 NCAC 3R .3030 if no appeal is filed. 
(B) Disapproval in the Calendar Year on or AAer September 17: Need determinations or portions of such need 
for which applications were submitted but disapproved by the Certificate of Need Section on or after 
September 17, shall be reallocated by the Certificate of Need Section. Section except for dialysis stations. 
A need in this category shall be available for a review period to be determined by the Certificate of Need 
Section but beginning no earlier than 95 days from the date the application was disapproved, if no appeal 
is filed. Notice of the scheduled review period for the reallocation shall be mailed no less than 80 days 
prior to the due date for submittal of the new applications. 
(8) Reallocation of Delicensed and Decertified ICF/MR Beds. If an ICF/MR facility's license and Medicaid 



certification are relinquished or revoked, the ICF/MR beds in the facility shall be reallocated by the Department 



of Human Resources, Division of Facility Services, Medical Facilities PlanninE Section pursuant to the provisions 



of the following sub-parts. The reallocated beds shall only be used to convert five-bed ICF/MR facilities into six- 
bed facilities. 

(A) If the number of five-bed ICF/MR facilities in the mental health planning region in which the beds are 
located equals or exceeds the number of reallocated beds, the beds shall be reallocated solely within the 
planning region after considering the recommendation of the Regional Team of Developmental Disabilities 
Senices Directors. 

(B) If the number of five-bed ICF/MR facilities in the mental health planning region in which the beds are 
located is less than the number of reallocated beds, the Medical Facilities Planning Section shall reallocate 



the excess beds to other planning regions after considering the recommendation of the Developmental 



Disabilities Section in the Division of Mental Health. Developmental Disabilities, and Substance Abuse 



Services. The Medical Facilities Planning Section shall then allocate the beds among the planning areas 



within those planning regions after considering the recommendation of the appropriate Regional Teams of 
Developmental Disabilities Ser\'ices Directors. 
(C) The Department of Human Resources, Division of Facility Services, Certificate of Need Section shall 
schedule reviews of applications for these beds pursuant to Subpart (a)(5) of this Rule. 
(Id) CHANGES IN NEED DETERMINATIONS. 

(1) The need determinations in 10 NCAC 3R .3030 and .3032 shall be revised continuously throughout 1995 the 
calendar year to reflect all changes In the Inventories of: 

(A) the health services listed at G.S. 131E-176 (16)f; 

(B) health service facilities; 

(C) health service facilit}' beds; 

(D) dialysis stations; 

(E) the equipment listed at G.S. 131E-176 (16)fl; and 

(F) mobile medical equipment. 

as those changes are reported to the Medical Facilities Plaiming Section. However, need determinations in 10 
NCAC 3R .3030 or .3032 shall not be reduced if the relevant Inventory is adjusted upward 30 days or less prior 
to the first day of the applicable review period. 

(2) In\entories shall be updated to reflect: 

(A) decertification of home health agencies or offices offices, intermediate care facilities for the mentally 
retarded, and dialysis stations; 

(B) delicensure of health service facilities and health service facility beds; 

(C) demolition, destruction, or decommissioning of equipment as listed at G.S. 131E-176(16)fl and s; 

(D) elimination or reduction of a health service as listed at G.S. 131E-176(16)f; 
E) psychiatric beds licensed pursuant to G.S. 131E-184(c); 

(F) certificates of need awarded, relinquished, or withdrawn, subsequent to the preparation of the inventories 
in the State Medical Facilities Plan; and 

(G) corrections of errors in the inventory as reported to the Medical Facilities Planning Section. 

(3) Any person who is interested in applying for a new institutional health ser\'ice for which a need determination is 
made in 10 NCAC 3R .3030 or .3032 may obtain Information about updated Inventories and need determinations 
from the Medical Facilities Planning Section. 

Aurhorin- G.S. 13 1 £-176(25); 131E-177(1); 131E-183(b). 

.3050 POLICIES 

(a) ACUTE CARE FACIUTIES AND SERVICES 

(1) Use of Licensed Bed Capacity Data for Plaiming Purposes. For planning purposes the number of licensed beds 



468 SORTH CAROLINA REGISTER July 15, 1996 11:8 



PROPOSED RULES 



shall be determined by the Division of Facility Services in accordance with standards found in 10 NCAC 3C .1510 
- Bed Capacity. 

(2) Utilization of Acute Care Hospital Bed Capacity. Conversion of underutilized hospital space to other needed 
purposes shall be considered an alternative to new construction. Hospitals falling below utilization targets in 10 
NCAC 3R .3050(a)(4) are assumed to have underutilized space. Any such hospital proposing new construction 
must clearly demonstrate that it is more cost-effective than conversion of existing space. 

(3) Exemption from Plan Provisions for Certain Academic Medical Center Teaching Hospital Projects. Projects for 
which certificates of need are sought by academic medical center teaching hospitals may qualify for exemption 
from provisions of 10 NCAC 3R .3030. The State Medical Facilities Planning Section shall designate as an 
Academic Medical Center Teaching Hospital any facility whose application for such designation demonstrates the 
following characteristics of the hospital: 

(A) Exemption from Plan provisions for certain Academic Medical Center Teaching Hospital projects that serve 
as a primary teaching site for a school of medicine and at least one other health professional school, 
providing undergraduate, graduate and postgraduate education. 

(B) Exemption from provisions of 10 NCAC 3R .3030 shall be granted to projects submitted by Academic 
Medical Center Teaching Hospitals designated prior to January 1, 1990 and houses extensive basic medical 
science and clinical research programs, patients and equipment, and which projects comply with one of the 
following conditions: 

(i) Necessary to complement a specified and approved expansion of the number or types of students, 

residents or faculty, as certified by the head of the relevant associated professional school; or 
(ii) Necessary to accommodate patients, staff or equipment for a specified and approved expansion of 

research activities, as certified by the head of the entity sponsoring the research; or 
(iii) Necessary to accommodate changes in requirements of specialty education accrediting bodies, as 
evidenced by copies of documents issued by such bodies. 

(C) Serves the treatment needs of patients from a broad geographic area through multiple medical specialties. 

(4) Reconversion to Acute Care. Facilities redistributing beds from acute care bed capacity to rehabilitation or 
psychiatric use shall obtain a certificate of need to convert this capacity back to acute care. Application for such 
reconversion to acute care of beds converted to psychiatry or rehabUitation shall be evaluated against the hospital's 
utilization in relation to target occupancies used in determining need shown in 10 NCAC 3R .3030 without regard 
to the acute care bed need shown in the Rule. These target occupancies are: 



Licensed Bed Capacity 


Percent 


Occupancy 


1 -49 




65 


50 -99 




70 


100 - 199 




75 


200 - 699 




80 


700 + 




81.5 



(5) Multi-Specialty Ambulatory Surgery. After applying other required criteria, when superiority among two or more 
competing ambulatory surgical facility certificate of need applications is uncertain, favorable consideration shall 
be given to "multi-specialty programs" over "specialty programs" in areas where need is demonstrated in 10 
NCAC 3R .3030. A multi-specialty ambulatoty surgical program means a program providing services in at least 
three of the following areas; gynecology, otolaryngology, plastic surgery, general surgery, ophthalmology, 
orthopedics, urology, and oral surgery. An ambulatory surgical facility shall provide at least two designated 
operating rooms with general anesthesia capabilities, and at least one designated recovery room. 

(6) Distribution of Inpatient Rehabilitation Beds. After applying other required criteria, when superiority among two 
or more competing rehabUitation facUity certificate of need applications is uncertain, favorable consideration shall 
be given to proposals that make rehabilitation services more accessible to patients and their families or are part 
of a comprehensive regional rehabilitation network. 

(b) LONG-TERM CARE FACIUTIES AND SERVICES. 
(1) Provision of Hospital-Based Long-Term Nursing Care. A certificate of need may be issued to a hospital which 
is licensed under G.S. 13 IE, Article 5, and which meets the conditions set forth below and other relevant rules, 
to convert up to ten beds from its Ucensed acute care bed capacity for use as hospital-based long-term nursing care 
beds without regard to determinations of need in 10 NCAC 3R .3030 if the hospital: 

(A) is located in a county which was designated as non-metropolitan by the U. S. Office of Management and 
Budget on January 1 , 4995t 1996; and 

(B) on January 1, 1995, 1996. had a licensed acute care bed capacity of 150 beds or less. 



11:8 NORTH CAROLINA REGISTER July 15, 1996 469 



PROPOSED RULES 



Tlie certificate of need shall remain in force as long as the Department of Human Resources determines that the 
hospital is meeting the conditions outlined in this Rule 

Hospital-based long-term nursing care" is defined as long-term nursing care provided to a patient who has been 
directly discharged from an acute care bed and cannot be immediately placed in a licensed nursing facility because 
of the unavailability of a bed appropriate for the individual's needs. Detemiination of the patient's need for 
hospital-based long-term nursing care shall be made in accordance with criteria and procedures for determining 
need for long-term nursing care administered by the Division of Medical Assistance and the Medicare program. 
Beds developed under this Rule are intended to provide placement for residents only when placement in other long- 
tenn care beds is unavailable in the geographic area. Hospitals which develop beds under this Rule shall discharge 
patients to other nursing facilities with available beds in the geographic area as soon as possible where appropriate 
and permissible under applicable law. Necessary documentation including copies of physician referral forms (FL 
2) on all patients in hospital-based nursing units shall be made available for review upon request by duly authorized 
representatives of licensed nursing facilities. 

For purposes of this Rule, beds in hospital-based long-term nursing care shall be certified as a "distinct part" as 
defined by the Health Care Financing Administration. Beds in a "distinct part" shall be converted from the existing 
licensed bed capacity of the hospital and shall not be reconverted to any other category or type of bed without a 
certificate of need. 

An application for a certificate of need for reconverting beds to acute care shall be evaluated against the hospital's 
service needs utilizing target occupancies shown in 10 NCAC 3R .3050(a)(4). without regard to the acute care bed 
need shown in 10 NCAC 3R .3030. A certificate of need issued for a hospital -based long-term nursing care unit 
shall remain in force as long as the following conditions are met: 

(i) the beds shall be certified for participation in the Title XVIII (Medicare) and Title XIX (Medicaid) 

Programs: 
(ii) the hospital discharges residents to other nursing facilities in the geographic area with available beds 

when such discharge is appropriate and permissible under applicable law; 
(iii) patients admitted shall have been acutely ill inpatients of an acute hospital or its satellites immediately 

preceding placement in the unit. 
The granting of beds for hospital-based long-term nursing care shall not allow a hospital to convert 
additional beds without first obtaining a certificate of need. Where any hospital, or the parent corporation 
or entity of such hospital, any subsidiary corporation or entity of such hospital, or any corporation or entity 
related to or affiliated with such hospital by common ownership, control or management: 

(I) applies for and receives a certificate of need for long-term care bed need determinations in 10 

NCAC 3R .3030; or 
(II) currently has nursing home beds licensed as a part of the hospital under G.S. 131E, Article 

5; or 
(III) currently operates long-term care beds under the Federal Swing Bed Program (P.L. 96-499), 
such hospital shall not be eligible to apply for a certificate of need for hospital-based long-term care nursing 
beds under this Rule. Hospitals designated by the State of North Carolina as Rural Primary Care Hospitals 
pursuant to section 1820(f) of the Social Security Act, as amended, which have not been allocated long-term 
care beds under provisions of G.S. 131E-175 ttirough i3lE-190 may apply to develop beds under this Rule. 
However, such hospitals shall not develop long-term care tjeds both to meet needs determined in 10 NCAC 
3R .3030 and this Rule. Beds certified as a "distinct part" under this Rule shall be counted in the inventory 
of existing long-term care beds and used m the calculation of unmet long-term care bed need for the general 
population of a planning area. Applications for certificates of need pursuant to this Rule shall be accepted 
only for the March 1 review cycle. Beds awarded under this Rule shall be deducted from need 
detenninations for the county as shown in 10 NCAC 3R .3030. Continuation of this Rule shall be reviewed 
and approved by the Department of Human Resources annually. Certificates of need issued under policies 
analogous to this Rule in State Medical Facilities Plans subsequent to the 1986 Plan are automatically 
amended to conform with the provisions of this Rule at the effective date of this Rule. The Department of 
Human Resources shall monitor this program and ensure that patients affected by this Rule are receiving 
appropriate services, and that conditions under which the certificate of need was granted are being met. 
(2) Plan Exemption for Continuing Care Facilities. 

(A) Qualified continuing care facilities may include from the outset, or add or convert bed capacity for long-term 
nursing care without regard to the bed need shown in 10 NCAC 3R .3030. To qualify for such exemption, 
applications for certificates of need shall show that rhe proposed long-term nursing bed capacity: 
(i) Will only be de\eloped concurrently with, or subsequent to construction on the same site, of facilities 
tor both of the following le\els of care: 



470 NORTH CAROLINA REGISTER July 15, 1996 11:8 



PROPOSED RULES 



(I) independent living accommodations (apartments and homes) for persons who are able to carry 
out normal activities of daily living without assistance; such accommodations may be in the 
form of apartments, flats, houses, cottages, and rooms within a suitable structure; 
(II) domiciliary care (home for the aged) beds for use by persons who, because of age or disability 
require some personal services, incidental medical services, and room and board to assure their 
safety and comfort, 
(ii) Will be used exclusively to meet the needs of persons with whom the facility has continuing care 
contracts (in compliance with the Department of Insurance statutes and rules) who have lived in a 
non-nursing unit of the continuing care facility for a period of at least 30 days. Exceptions shall be 
allowed when one spouse or sibling is admitted to the nursing unit at the time the other spouse or 
sibling moves into a non-nursing unit, or when the medical condition requiring nursing care was not 
known to exist or be imminent when the individual became a party to the continuing care contract. 
Financial consideration paid by persons purchasing a continuing care contract shall be equitable 
between persons entering at the "independent living" and "domiciliary" levels of care, 
(iii) Reflects the number of beds required to meet the current or projected needs of residents with whom 
the facility has an agreement to provide continuing care, after making use of all feasible alternatives 
to institutional nursing care, 
(iv) Will not be certified for participation in the Medicaid program. 
(B) One half of the long-term nursing beds develojjed under this exemption shall be excluded from the inventory 
used to project bed need for the general population. Certificates of need issued under policies analogous 
to this Rule in State Medical Facilities Plans subsequent to the 1985 SMFP are automatically amended to 
conform with the provisions of this Rule at the effective date of this Rule. Certificates of need awarded 
pursuant to the provisions of Chapter 920, Session Laws 1983, or Chapter 445, Session Laws 1985 shall 
not be amended. 

(3) Development of Home Health Services. After applying other required criteria, when superiority among two or 
more competing home health agency or office certificate of need applications is uncertain, favorable consideration 
shall be given to proposals which: 

(A) provide an expanded scope of services (including nursing, physical therapy, speech therapy, and home health 
aide service); 

(B) provide the widest range of treatments within a given service; aad 

(C) have the ability to offer services on a seven days per week basis as required to meet patient noodo. needs; 
and 

(D) provide specialized services to address the needs of at least one of the following groups: nursing home 
patients in transition to the community, HIV/AIDS patients, Alzheimer's Disease/senile dementia patients. 
or underserved patients in rural counties. 

(4) Need Determination Upon Termination of County's Sole Home Health Agency. When a home health agency's 
board of directors, or in the case of a pubUc agency, the responsible public body, votes to discontinue the agency's 
provision of home health services; and 

(A) the agency is the only home health agency with an office physically located in the county; and 

(B) the agency is not being lawfully transferred to another entity; need for a new home health agency or office 
in the county is thereby established through this Rule. 

Following receipt of written notice of such decision from the home health agency's chief administrative officer, 
the Certificate of Need Section shall give public notice of the need for one home health agency or office in the 
county, and the dates of the review of applications to meet the need. Such notice shall be given no less than 45 
days prior to the final date for receipt of applications in a newspaper serving the county and to home health 
agencies located outside the county repwrting serving county patients in the most recent licensure applications on 
file. 

(5) Availability of Dialysis Care. After applying other required criteria, when superiority among two or more 
competing dialysis facihty or station certificate of need applications is uncertain, favorable consideration shall be 
given to applicants proposing to provide or arrange for: 

(A) home training and backup for patients suitable for home dialysis in the ESRD dialysis facility or in a facility 
that is a reasonable distance from the patient's residence; 

(B) ESRD dialysis service availability at times that do not interfere with ESRD patients' work schedules; 

(C) services in rural, remote areas. 

(6) Determination of Need for Additional Nursing Beds in Single Provider Counties. When a long-term care facility 
with fewer than 80 nursing care beds is the only nursing care facility within a county, it may apply for a certificate 
of need for additional nursing beds in order to bring the minimum number of beds available within the county to 



11:8 NORTH CAROLINA REGISTER July 15, 1996 471 



PROPOSED RULES 



no more than SO nursing beds \v ithout regard to the nursing bed need determination for that count}' as listed in 10 
NCAC 3R .3030. 
(c) MENTAL HEALTH FACILITIES AND SERVICES. 

(1) Appropriate Provision of Care. Hospitalization shall be considered the most restricti\'e form of therapeutic 
inter\ention or treatment and shall be used only when this level of 24-hour care and supervision is required to meet 
the patient's health care needs. 

(2) Linkages Between Treatment Settings. Anyone apph'ing for a certificate of need for ps_\ chiatric, ICF'MR or 
substance abuse beds shall document that the affected area mental health, developmental disabilities and substance 
abuse authorities have been contacted and invited to comment on the proposed sen.ices. relati\'e to their 
endorsement of the project and involvement in the development of a client admission and discharge agreement. 

(3) Transfer of Beds from State Ps\'chiatric Hospitals to Community Facilities. Beds in the State psychiatric hospitals 
used to ser\'e short-term psjchiatric patients ma_\' be relocated to communit)' facilities. Howe\er. before beds are 
transferred out of the State psychiatric hospitals, appropriate services and programs shall be a\'ailable in the 
communit}'. The process of transferring beds shall not result in a net change in the number of ps_\ chiatric beds 
a\ailable, but rather in the location of beds counted in the existing inventor}'. State hospital beds w hich are 
relocated to community facilities shall be closed withm mnet} da}'s following the date the transferred beds become 
operational in the coiTununit} . Facilities proposing to operate transferred beds shall commit to ser\ e the t\ pe of 
short-teri-n patients nomiall} placed at the State ps\'chiatric hospitals. To help ensure that relocated beds w ill serve 
those persons uho would ha\e been ser\ed b} the State ps}chiatric hospitals, a proposal to transfer beds from a 
State hospital shall include a written memorandum of agreement between the area MH/DD SAS program ser\'ing 
the count}' where the beds are to be located, the Secretar} of Human Resources, and the person submitting the 
proposal. 

(4) Inpatient Psychiatric Sers'ices for Children and Adolescents. Inpatient psychiatric treatment of children and 
adolescents which is more e.\tensi\'e than stabilization shall occur in units which are separate and distinct from both 
adult ps}chiatric units and general pediatric units. In order to maximize efficiency and ensure the availability of 
a continuum of care, psychiatric beds for children and adolescents shall be developed in conjunction with outpatient 
treatment programs. 

(5) ln\'oluntaril} Committed Patients. All certificate of need applications for psychiatric beds shall indicate the 
proponents" w illingness to be designated to serve involuntarily committed patients. 

(6) Substance Abuse Programs to Treat Adolescents. Adolescents shall recei\'e substance abuse treatment services that 
are distinct from services provided to adults. 

(7) Determination of Intermediate Care Bed Need for Mentally Retarded/ Developmentally Disabled Persons. After 
applying other required criteria, when superiority among two or more competing ICF/MR certificate of need 
applications is uncertain, fa\'orabIe consideration shall be given to counties that do not have ICF/MR group homes 
w hen such counties are part of a multi-county area for which a need is shown in 10 NCAC 3R .3030. 

(S) Transfer of Beds from State Mental Retardation Centers. Facilities proposing to transfer ICF/MR beds from State 
mental retardation centers to communities shall demonstrate that they are committed to sen.'ing the same type of 
residents normally served in the State mental retardation centers. To ensure that relocated beds will ser\'e those 
persons, any certificate of need application proposing to transfer beds under this rule must meet the requirements 
of Chapter 858 of the 1983 Session Laws. The application for transferred beds shall include a written agreement 
by the applicant w ith the following representatives which outlines the operational aspects of the bed transfers: 
Director of the .Area MH,/DD/SAS Program serving the county where the program is to be located; the Director 
of the applicable State Mental Retardation Center; the Chief of Developmental Disabilit}' Services in the 
DMH'DD'SAS; and the Secretary of the Department of Human Resources. 



Aurhorin G.S. 131E-176(25): 131E-177(1): ]31E-183(b). 



TITLE ISA - DEPARTME.NT OF ENMRONMENT, .0911 and .0946. 

HEALTH, AND NATLRAL RESOURCES 



N 



Proposed Effective Date: 

orice is hereby given in accordance niih G.S. 15A \CAC 2D .0518, .0524, .0530. .0902, .0907, .0909 - 

150B-21.2 that the Environmental Management Com- .0911, .0946. .0954, .1110 - .1111, .1402 - .1403; 2Q 

mission intends to amend rules cited as 15A NCAC 2D .0104, .0107 - April 1. 1997. 

.05 IS, .0524, .0530, .0902. .0909, .0954. .1110 - .1111. 15A SCAC 2Q .0102, .0507, .0512, .0514 - .0515 and 

.1402. .1403: 2Q .0102. .0104. .0107, .0507, .0512. .0514, .0517 - July 1, 1997. 
.0515. .0517: and to repeal 15A NCAC 2D .0907, .0910, 



472 NORTH CAROLINA REGISTER July 15, 1996 11:8 



PROPOSED RULES 



A I^jblic Hearing will be conducted at 7:00 p.m. on July 
31, 1996 at the Archdale Building, Groundfloor Hearing 
Room, 512 N. Salisbury Street, Raleigh, NC 27604. 

Reason for Proposed Action: 

15A NCAC 2D .0518, .0524, .0902, .0907, .0909, .0910, 
.0911, .0946, .0954, .1111, .1402, .1403 - To change the 
mechanism and procedures for activating the reasonably 
available technology (RACT) rules for volatile organic 
compounds (VOC) and nitrogen oxides (NOx) in the Ra- 
leigh/Durham and Greensboro /Winston Salem/High Point 
areas and to delete unnecessary or elapsed compliance 
schedules. 

15A NCAC 2D .0530 - To incorporate the latest edition of 
the federal Code of Federal Regulations and remove lan- 
guage for default issuance of permits upon failure of DEM 
to act on a permit application within 90 days. 
15A NCAC 2D .1110 - To adopt federal National Emission 
Standards for Hazardous Air Pollutants by reference. 
15 A NCAC 2Q .0104 - To remove a cross-reference to a 
repealed rule. 

15A NCAC 2Q .0107 - To correct a cross-reference to an 
amended General Statute. 

15A NCAC 2Q .0102, .0507, .0512, .0514, .0515, .0517- 
To revise Tide V permitting procedures and permit exemp- 
tions per EPA comment on North Carolina's Title V permit- 
ting program. 

Comment Procedures: All persons interested in these 
matters are invited to attend the public hearing. Any person 
desiring to comment for more than three minutes is requested 
to submit a written statement for inclusion in the record of 
proceedings at the public hearing. The hearing record will 
remain open until August 30, 1996, to receive additional 
written statements. The Commission has specifically asked 
for comment on the proposed amendments to the permit 
exemption rule for boilers and case-by-case. The Division 
currently has an exemption level of 40 tons per year (poten- 
tial for boilers). In its interim approval of the State 's Title 
V program, EPA commented that the State needed to limit 
these two exemptions to sources with emissions of no more 
than 5 tons per year (potential). Specifically , should the 
level be set at the current 40 tons per year or at five tons 
per year or something in between? 

Comments should be sent to and additional information 
concerning the hearing or the proposals may be obtained by 
contacting: 

Mr. Thom Allen 
Division of Environmental Management 

P. O. Box 29535 

Raleigh, North Carolina 27626-0535 

(919) 733-1489 - Phone 

(919) 733-1812 - Fax 

Fiscal Note: Rules 2Q .0102, .0507, .0512, .0514, .0515 
and .0517 affect the expenditures or revenues of state and 
local government funds. The remainder rules do not affect 



the expenditures or revenues of state or local government 
funds. These Rules do not have a sidDstantial economic 
impact of at least five million dollars ($5,000,000) in a 12- 
month period. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 

SUBCHAPTER 2D - AIR POLLUTION 
CONTROL REQUIREMENTS 

SECTION .0500 - EMISSION 
CONTROL STANDARDS 

.0518 MISCELLANEOUS VOLATILE ORGANIC 
COMPOUND EMISSIONS 

(a) This Rule shall be applicable to all sources of volatile 
organic compound emissions for which no other volatile 
organic compound emission control standards are applicable, 
including those standards found in Section .0900 of this 
Subchapter as well as Rules .0524, . 11 10, or . 11 11 of this 
Subchapter, or 40 CFR Part 63. 

(b) A person shall not place, store or hold in any 
stationaiy tank, reservoir, or other container with a capacity 
greater than 50,000 gallons, any Uquid compound containing 
carbon and hydrogen or containing carbon and hydrogen in 
combination with any other element which has a vapor 
pressure of 1.5 pounds per square inch absolute or greater 
under actual storage conditions unless such tank, reservoir, 
or other container: 

(1) is a pressure tank, capable of maintaining working 
pressures sufficient at all times to prevent vapor 
gas loss into the atmosphere; or 

(2) is designed and equipped with one of the follow- 
ing vapor loss control devices: 

(A) a floating pontoon, double deck type float- 
ing roof or internal pan type floating roof 
equipjsed with closure seals to enclose any 
space between the cover's edge and com- 
partment wall; this control-equipment shall 
not be permitted if the compound is a 
photochemicaUy reactive material having a 
vapor pressure of 11.0 pounds per square 
inch absolute or greater under actual stor- 
age conditions; all tank gauging or sam- 
pling devices shall be gas-tight except when 
tank gauging or sampling is taking place; 

(B) a vapor recovery system or other equip- 
ment or means of air pollution control as 
approved by the Director which reduces the 
emission of organic materials into the 
atmosphere by at least 90 percent by 
weight; all tank gauging or sampling de- 
vices shall be gas-tight except when tank 
gauging or sampling is taking place. 

(c) A person shall not load in any one day more than 
20,000 gallons of any volatile organic compoimd into any 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



473 



PROPOSED RULES 



tank-truck, trailer, or railroad tank car from any loading 
facility unless the loading uses submerged loading through 
boom loaders that extend down into the compartment being 
loaded or by other methods demonstrated to the Director to 
be at least as efficient. 

(d) With the exemptions of Paragraphs (g) and (h) of this 
Rule, a person shall not discharge from all sources at any 
one plant site more than a total of 40 pounds of photochemi- 
cally reactive solvent into the atmosphere in any one day, 
from any article, machine, equipment or other contrivance 
used for employing, applying, evaporating or drying any 
photochemically reactive solvent or substance containing 
such solvent unless the discharge has been reduced by at 
least 85 percent by weight. Photochemically reactive 
solvents include any solvent with an aggregate of more than 
20 percent of its total volume composed of the chemical 
compounds classified in this Paragraph, or which exceed 
any of the following percentage composition limitations, 
referred to the total volume of the solvent: 

(1) a combination of hydrocarbons, alcohols, alde- 
hydes, esters, ethers, or ketones having an ole- 
finic or cyclo-olefinic type of unsaturation —five 
percent; 

(2) a combination of aromatic hydrocarbons with 
eight or more carbon atoms to the molecule 
except ethylbenzene— eight percent; 

(3) a combination of ethylbenzene, ketones having 
branched hydrocarbon structure, trichloroethylene, 
or toluene— 20 percent. 

Whenever any photochemically reactive solvent, or any 
constituent of any photochemically reactive solvent may be 
classified from its chemical structure into more than one of 
the groups of chemical compounds in this Paragraph, it shall 
be considered as a member of the most reactive chemical 
compound group, that is, that group having the least 
allowable percent of the total volume of solvents. Diacetone 
alcohol and perchloroethylene are not considered photo- 
chemically reactive under this Rule. Compounds that are not 
volatile organic compounds as defined under 40 CFR 51. 100 
are also not considered photochemically reactive under this 
Rule. 

(e) A source need not comply with Paragraphs (b), (c), 
or (d) of this Rule if it complies with otherwise applicable 
rules in Section .0900 of this Subchapter. However, the 
source shall not comply with Rules .0902 through .0911, 
.0950, .0951(c), and .0952 of this Subchapter. This 
Paragraph shall not apply to sources subject to the require- 
ments of Section .0900 of this Subchapter because of Rule 
.0902 (d), (o). or (f) (e)^ [fl^ or [g] of this Subchapter. 

(f) Any source to which this Rule applies shall be 
exempted from the requirements of Paragraphs (b), (c), or 
(d) if control equipment is installed and operated which 
meets the requirements of best available control technology 
as defined in and determined by procedures of Rule .0530 
of this Section. A new best available control technology 
determination and procedure need not be performed if in the 
judgement of the Director a previous best available control 



technology determination is applicable. 

(g) Sources at a plant site with emission limits established 
by Paragraphs (e) or (0 of this Rule, R«le Rules .0524, 
. 1110 or . 11 11 of this Subchapter, or 40 CFR Part 63 shall 
be excluded from consideration when determining the 
compliance of any remaining sources with Paragraph (d) of 
this Rule. 

(h) Recycled solvents shall be considered non-photochem- 
ically reactive if: 

(1) The solvents are recycled on-site; 

(2) The solvents were originally non-photochemically 
reactive; and 

(3) All make-up solvents added to the recycled sol- 
vents are non-photochemically reactive. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(5). 

.0524 NEW SOURCE PERFORMANCE 
STANDARDS 

(a) With the exception of Paragraph (1)) or (c} of this 
Rule, sources subject to new source performance standards 
promulgated in 40 CFR Part 60 shall comply with emission 
standards, monitoring and reporting requirements, mainte- 
nance requirements, notification and record keeping require- 
ments, performance test requirements, test method and 
procedural provisions, and any other provisions, as required 
therein, rather than with any otherwise-applicable Rule in 
this Section which would be in conflict therewith. 

(b) The following is not Included under this Rule: new 
residential wood heaters (40 CFR 60.530 to 60.539b, 
Subpart AAA). 

fb>(c) Along with the notice appearing in the North 
Carolina Register for a public hearing to amend this Rule to 
exclude a standard from this Rule, the Director shall state 
whether or not the new source performance standards 
promulgated under 40 CFR Part 60, or part thereof, shall be 
enforced. If the Commission does not adopt the amendment 
to this Rule to exclude or amend the standard within 12 
months after the close of the comment period on the 
proposed amendment, the Director shall begin enforcing that 
standard when 12 months has elapsed after the end of the 
comment period on the proposed amendment. 

fe^(d) New sources of volatile organic compounds that 
are located in an area designated in 40 CFH 81.334 as 
nonattalnment for ozone or an area identified In accordance 
with 15 A NCAC 2D .0902(d) as being in violation of the 
ambient air quality standard for ozone shall comply with the 
requirements of 40 CFR Part 60 that are not excluded by 
this Rule, as well as with any applicable requirements in 
Section .0900 of this Subchapter. 

(d){e) All requests, reports, applications, submittals, and 
other communications to the administrator required under 
Paragraph (a) of this Rule shall be submitted to the Director 
of the Division of Environmental Management rather than 
to the Environmental Protection Agency. 

(e)(f) In the application of this Rule, definitions contained 
in 40 CFR Part 60 shall apply rather than those of Section 



474 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



.0100 of this Subchapter. 

(^(g} 15A NCAC 2Q .0102 and .0302 are not applicable 
to any source to which this Rule applies except for: 

(1) 40 CFR Part 60, Subpart Dc, industrial, commer- 
cial, and institutional steam generating units; 

(2) 40 CFR Part 60, Subpart Kb, volatile organic 
liquid storage vessels; or 

(3) 40 CFR Part 60, Subpart AAA, new residential 
wood heaters. 

The owner or operator of the source shall apply for and 
receive a permit as required in 15A NCAC 2Q .0300 or 
.0500. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(5); 150B- 
21.6. 

.0530 PREVENTION OF SIGNIFICANT 
DETERIORATION 

(a) The purpose of the Rule is to implement a program 
for the prevention of significant deterioration of air quality 
as required by 40 CFR 51.166 as amended Juno 3, 1993. 
March 15, 1996. 

(b) For the purposes of this Rule the definitions con- 
tained in 40 CFR 51.166(b) and 40 CFR 51.301 shall apply. 
The reasonable period specified in 40 CFR 51. 166(b)(3)(ii) 
shall be seven years. The limitation specified in 40 CFR 
51.166(b)(15)(ii) shall not apply. 

(c) All areas of the State shall be classified as Class II 
except that the following areas are Class I: 

(1) Great Smoky Mountains National Park; 

(2) Joyce Kilmer SUckrock National Wilderness Area; 

(3) Linville Gorge National Wilderness Area; 

(4) Shining Rock National Wilderness Area; 

(5) Swanquarter National Wilderness Area. 

(d) Redesignations of areas to Class I or II may be 
submitted as state proposals to the Administrator of the 
Environmental Protection Agency (EPA), if the require- 
ments of 40 CFR 51.166(g)(2) are met. Areas may be 
proposed to be redesignated as Class HI, if the requirements 
of 40 CFR 51.166(g)(3) are met. Redesignations may not, 
however, be proposed which would violate the restrictions 
of 40 CFR 51.166(e). Lands within the boundaries of 
Indian Reservations may be redesignated only by the 
appropriate Indian Governing Body. 

(e) In areas designated as Class I, II, or HI, increases in 
pollutant concentration over the baseline concentration shall 
be limited to the values set forth in 40 CFR 51.166(c). 
However, concentration of the pollutant shall not exceed 
standards set forth in 40 CFR 51.166(d). 

(f) Concentrations attributable to the conditions described 
in 40 CFR 51.166(f)(1) shall be excluded in determining 
compUance with a maximum allowable increase. However, 
the exclusions referred to in 40 CFR 51. 166(f)(l)(i) or (ii) 
shall be limited to five years as described in 40 CFR 
51.166(f)(2). 

(g) Major stationary sources and major modifications 
shall comply with the requirements contained in 40 CFR 



51.166(i) and by extension in 40 CFR 51.166(j) through (o). 
The transition provisions allowed by 40 CFR 52.21 (i)(l l)(i) 
and (ii) and (m)(l)(vii) and (viii) are hereby adopted under 
this Rule. The minimum requirements described in the 
portions of 40 CFR 51.166 referenced in this Paragraph are 
hereby adopted as the requirements to be used under this 
Rule, except as otherwise provided in this Rule. Wherever 
the language of the portions of 40 CFR 51.166 referenced 
in this Paragraph speaks of the "plan," the requirements 
described therein shall apply to the source to which they 
pertain, except as otherwise provided in this Rule. When- 
ever the portions of 40 CFR 51.166 referenced in this 
Paragraph provide that the State plan may exempt or not 
apply certain requirements in certain circumstances, those 
exemptions and provisions of nonapplicability are also 
hereby adopted under this Rule. However, this provision 
shall not be interpreted so as to limit information that may 
be requested from the owner or operator by the Director as 
specified m 40 CFR 51.166(n)(2). 

(h) 15A NCAC 2Q .0102 and .0302 are not applicable to 
any source to which this Rule applies. The owner or 
operator of the sources to which this Rule applies shall 
apply for and receive a permit as required in 15A NCAC 
2Q .0300 or .0500. 

(i) When a particular source or modification becomes a 
major stationary source or major modification solely by 
virtue of a relaxation in any enforceable limitation which 
was established after August 7, 1980, on the capacity of the 
source or modification to emit a pollutant, such as a 
restriction on hours of operation, then the provisions of this 
Rule shall apply to the source or modification as though 
construction had not yet begun on the source or modifica- 
tion. 

(j) Volatile organic compounds exempted from coverage 
in Subparagraph (c)(5) of Rule .0531 of this Section shall 
also be exempted when calculating source applicability and 
control requirements under this Rule. 

(k) The degree of emission limitation required for control 
of any air pollutant under this Rule shall not be affected in 
any manner by: 

(1) that amount of a stack height, not in existence 
before December 31, 1970, that exceeds good 
engineering practice; or 

(2) any other dispersion technique not implemented 
before then. 

(1) A substitution or modification of a model as provided 
for in 40 CFR 51.166(1) shall be subject to public comment 
procedures in accordance with the requirements of 4 CFR 
51.166(q). 4 CFR 51.102. 

(m) Permits may be issued on the basis of innovative 
control technology as set forth in 40 CFR 51.166(s)(l) if the 
requirements of 40 CFR 51.166(s)(2) have been met, subject 
to the condition of 40 CFR 51.166(s)(3), and with the 
allowance set forth in 40 CFR 51.166(s)(4). 

(n) If a source to which this Rule applies impacts an area 
designated Class I by requirements of 40 CFR 51.166(e), 
notice to EPA will be provided as set forth in 40 CFR 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



475 



PROPOSED RULES 



51 . 166(p)(l). If the Federal Land Manager presents a 
demonstration described in 40 CFR 51.166(p)(3) during the 
public comment period or public hearing to the Director and 
if the Director concurs with this demonstration, the permit 
apphcation shall be denied. Permits may be issued on the 
basis that the requirements for variances as set forth in 40 
CFR 51.166(p)(4), {p){5) and (p)(7). or (p)(6) and (p)(7) 
have been satisfied. 

(o) A permit application subject to this Rule shall be 
processed in accordance with the procedures and require- 
ments of 40 CFR 51.166(q). Within 30 days of receipt of 
the application, appUcants will be notified if the application 
is complete as to initial information submitted. Notwith 
standing this d e t e rmination, th e 90 day p e riod provid e d for 
th e Commission to act by G.S. M3 215.108(1)) shall b e 
considered to begin at the end of the period allowed for 
public comment, at the end of any public hearing hold on 
the application, or v . hen th e applicant suppli e s informatioa 
request e d by the Diroctor in answer to comm e nto r e c e iv e d 



uring the comment — pwriod or at any 



publi ' 



V i hichever is later. — The Director shall notify- the Adminis 
trator of EPA of any application consid e r e d approv e d by 
expiration of th e 90 days: this notification s hall b e mad e 
within 10 ' ■ ' ■ orking day s of the date of expiration. — If no 
permit action has been token x' l hen 70 days of the 90 day 
period hav e e xpir e d, the Commission shall r e linqui s h its 

4e 



(2) The Director shall consider any analysis concern- 
ing visibility impairment performed by the Fed- 
eral Land Manager if the analysis is received 
within 30 days of notification. If the Director 
finds that the analysis of the Federal Land Man- 
ager fails to demonstrate to his satisfaction that an 
adverse impact on visibility will result in the 
Class I area, the Director shall provide in the 
notice of public hearing on the application, an 
explanation of his decision or notice as to where 
the explanation can be obtained. 

(3) The Director may require monitoring of visibility 
in or around any Class I area by the proposed 
new source or modification when the visibility 
impact analysis indicates possible visibility impair- 
ment. 

(r) Revisions of the North Carolina State Implementation 
Plan for Air Quality shall comply with the requirements 
contamed in 40 CFR 51.166(a)(2). 

(s) The version of the Code of Federal Regulations 
incorporated in this Rule is that as of Juno 3, 1993, March 
15, 1996, and does not include any subsequent amendments 
or editions to the referenced material. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(3); 
143-215. 107(a)(5); 143-215. 107(a)(7); 143-215. 108(b); 
150B-21.6. 

SECTION .0900 - VOLATILE ORGANIC 
COMPOLTVDS 

.0902 APPLICABILITY 

(a) Rules .0925, .0926. 0927. .0928, .0932. and .0933 



pr e v e ntion of s ignificant d e t e rioration (PSD) authoritv 
EPA for that permit. The Commission shall notif)' by letter 
the EPA Regional jXdministrator and the applioont when 70 
da)s ha\ e e xpir e d. — EPA ' ■ ' ■ ill th e n ha\ e r es pon s ibilit)' for 
satisfying — unm e t — PSD — r e quir e m e nts. — including — p e rmit 
issuance with appropriate conditions. — TTie permit applicant 
must secure from the Commission, a permit revised (if 
n e c e sMP . ) to contain conditionG at l e ast as string e nt as thos e of this S e ction apply stat e wid e , in accordanc e with Rul e 
in th e EPA p e rmit, before b e ginning construction. Com- 
mencement of construction before full PSD prevention of 
significant deterioration approval is obtained constitutes a 
violation of this Rule. 

(p) Approval of an application with regard to the require- 
ments of this Rule shall not relieve the owner or operator of 
the responsibility' to comply full}' with applicable provisions 
of other rules of this Chapter and any other requirements 
under local, state, or federal law. 

(q) Wlien a source or modification subject to this Rule 
may affect the visibility of a Class I area named in Para- 
graph (c) of this Rule, the following procedures shall apply: 
(1) The Director shall provide written notification to 

all affected Federal Land Managers within 30 

da_\'s of receiving the permit application or within 

30 days of receiving advance notification of an 

apphcation. The notification shall be at least 30 

days prior to the publication of notice for public 

comment on the application. The notification 

shall include a copy of all information relevant to 

the permit application including an analysis 

pro\ ided b}' the source of the potential impact of 

the proposed source on visibility. 



.0916 of this Section. The following Rules of this Section 
applv statewide: 

(1) .0925, Petroleum Liquid Storage in Fixed Roof 

Tanks, for fixed roof tanks at gasoline bulk plants 

and gasoline bulk terminals; 

.0926, Bulk Gasoline Plants; 

.0927. Bulk Gasoline Terminals: 

.0928, Gasoline Service Stations Stage I: 



ill 
(li 
(4] 
(5J 

16] 



.0932, Gasoline Truck Tanks and Vapor Collec- 
tion Systems: and 

.0933, Petroleum Liquid Storage in External 

Floating Roof Tanks, for external floating roof 

tanks at bulk gasoline plants and bulk gasoline 

terminals. 

(h) Rule T©95* .0953, Vapor Return Piping for Stage fl 

Vapor Recovery, of this Section applies in Davidson, 

Durham, Forsyth, Gaston, Guilford. Mecklenburg, Wake, 

Dutchville Township in Granville Count}', and that part of 

Davie County bounded by the ^'adkin River, Dutchmans 

Creek, North Carolina Highway 80 1 , Fulton Creek and back 

to Yadkin River in accordance with provisions set out in that 

Rule. 

(c) All sources located in Mecklenburg County that were 



476 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



required to comply with any of these Rules: 
iXi .0917 through .0938 of this Section, or 
£2} .0943 through .0946 of this Section, 
before July 5^^ 1995, shall continue to comply with these 
Rules. 

(©)£d} With the exceptions stated in Paragraph (g) 
Paragraphs (a), fb), (c). or £h} of this Rule, this Section 
applies to: applies, in accordnnco with Ruloa .0907 and 
.09'16 of this Section, to all source s of volatile organic 
compoundi) located in on aroa d e signat e d in 10 CFR 8 1.33'1 
ac nonattainm e nt for ozone. 

(1) Charlotte/Gastonia. consisting of Mecklenburg 
and Gaston Counties in accordance with Para- 
graph (e) of this Rule: 

(2) Greensboro/Wins ton-Salem/Hi gh Point, consisting 
of Davidson, Forsyth, and Guilford Counties ajod 
that part of Davie County bounded by the Yadkin 
River, Dutchmans Creek, North Carolina High- 
way 801. Fulton Creek and back to Yadkin River 
in accordance with Paragraph (f) of this Rule: or 

(3) Raleigh/Durham, consisting of Ehjrham and Wake 
Counties and Dutchville Township in Granville 
County in accordance with Paragraph (g) of this 
Rule. 

(d) — With the oxooptions stated in Paragraph (g) of this 
Rul e , this S e ction ohall apply, in aooordanoe with Rul e 
.0909 of this Sootion, to all oouroes of volatil e organic 
compxjunda located in any of tho following areas and in that 
a rea only when the Dircxitor notices in the North Carolina 
Re giotor that th e ar e a is in violation of th e ambi e nt air 
quality standard for ozon e : 

fi) GrccnsboroAVinston Salem/High Point, consisting 

of Davidson, Forsyth, and Guilford Counties and 
that part of Davi e Count)' bound e d by th e Yadkin 
Riv e r, Dutohmano Cr ee k, North Carolina High 
way 8 01, Fulton Crook and back to Yadkin Rivor; 

Of 

^3) Raloigh/Durham, oonoioting of Durham and Wak e 

Counties and Dutchvill e Township in Granvill e 
Count)'. 
At least one v i 'ook before tho schodulod publication date of 
th e North Carolina R e gist e r containing the Dir e ctor' o notic e 
of violation, tho Dir e ctor shall s e nd writt e n notification to 
all pormittod faciUtios within tho area of violation that aro or 
may be subject to tho requirements of this Section as a result 
of th e violation informing th e m that th e y aro or may bo 
subj e ct to tho requir e m e nts of this Section. — Violations of 
the ambient air quality standard for ozone shall bo dotor 
mined in accordance with 4 CFR 50.9. 

(e) If a violation of the ambient air quality standard for 
ozone is measured in accordance with 40 CFR 50.9 in 
Cabarrus, Gaston, Iredell, Lincoln, Mecklenburg, Rowan, 
or Union County, North Carolina or York County, South 
Carolina, the Director shall initiate analysis to determine the 
control measures needed to attain and maintain the ambient 
air quality standard for ozone. By the following May 1 , the 
Director shall implement the specific stationary source 



control measures contained in this Section that are required 
as part of the control strategy necessary to bring the area 
into compliance and to maintain compliance with the 
ambient air quality standard for ozone. The Director shall 
implement the Rules rules in this Section identified as being 
necessary by the analysis by notice in the North Carolina 
Register. The notice shall identify the rules that are to be 
implemented and shall identify whether the rules imple- 
mented are to apply in Gaston or Mecklenburg County or in 
both counties. At least one week before the scheduled 
publication date of the North Carolina Register containing 
the Director's notice implementing rules in this Section, the 
Director shall send written notification to all permitted 
facilities within the county in which the rules are being 
implemented that are or may be subject to the requirements 
of this Section informing them that they are or may be 
subject to the requirements of this Section. (For 
Mecklenburg County, "Director" means for the purpose of 
notifying permitted facilities in Mecklenburg County, the 
Director of the Mecklenburg County local air pollution 
control program.) Compliance shall be in accordance with 
Rule .0909 of this Section. 

(f) If a violation of the ambient air quality standard for 
ozone is measured in accordance with 40 CFR 50.9 in 
Davidson, Forsyth, or Guilford County or that part of Davie 
County bounded by the Yadkin River, Dutchmans Creek, 
North Carolina Highway 801, Fulton Creek and back to 
Yadkin River, the Director shall initiate analysis to deter- 
mine the control measures needed to attain and maintain the 
ambient air quality standard for ozone. By the following 
May ii die Director shall implement the specific stationary 
source control measures contained in this Section that are 
required as part of the control strategy necessary to bring 
the area into compliance and to maintain compliance with 
the ambient air quality standard for ozone. The Director 
shall implement the rules in this Section identified as being 
necessary by the analysis by notice in the North Carolina 
Register. The notice shall identify the rules that are to be 
implemented and shall identify whether the rules imple- 
mented are to apply in Davidson, Forsyth, or Guilford 
County or that part of Davie County bounded by the Yadkin 
River, Dutchmans Creek, North Carolina Highway 801. 
Fulton Creek and back to Yadkin River or any combination 
thereof. At least one week before the scheduled publication 
date of the North Carolina Register containing the Director's 
notice implementing rules in this Section, the Director shall 
send written notification to all permitted facilities within the 
county in which the rules are being implemented that are or 
may be subject to die requirements of this Section informing 
them that they are or may be subject to the requirements of 
this Section. (For Forsyth County. "Director" means for 
the purpose of notifying permitted facilities in Forsyth 
County, the Director of the Forsyth County local air 
pollution control program.) Compliance shall be in accor- 
dance with Rule .0909 of this Section. 

(g) If a violation of the ambient air quality standard for 
ozone is measured in accordance with 40 CFR 50.9 in 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



477 



PROPOSED RULES 



Durham or Wake County or Dutchville Township in 
Granville County, the Director shall initiate analysis to 
determine the control measures needed to attain and main- 
tain the ambient air quality standard for ozone. By the 
following May J^ the Director shall implement the specific 
stationary source control measures contained in this Section 
that are required as part of the control strategy necessary to 
bring the area into compliance and to maintain compliance 
with the ambient air quality standard for ozone. TTie 
Director shall implement the rules in this Section identified 
as being necessary by the analysis by notice in the North 
Carolina Register. The notice shall identify the rules that 
are to be implemented and shall identify whether the rules 
implemented are to apply in Durham or Wake County or 
EHitchville Township in Granville County or any combina- 
tion thereof. At least one week before the scheduled 
publication date of the North Carolina Register containing 
the Director's notice implementing rules in this Section, the 
Director shall send written notification to all permitted 
facilities within the county in which the rules are being 
implemented that are or may be subject to the requirements 
of this Section informing them that they are or may be 
subject to the requirements of this Section. Compliance 
shall be in accordance with Rule .0909 of this Section. 



(f) This — Section — SjteH — set — apply — 1« — facilitie s — m 

M e ckl e nburg county whos e pot e ntial e mi ss ion s of volatil e 
organic compounds ar e l ess than 100 tons p e r y e ar or to 

facilitieo — in Gaston — County — vstti — May — h — 1997. tf 

Meoklonburg County is de s ignated attainment in 4 CFR 
8 1.331, all sourc es in M e cldonburg Count)' oubj e ot to a rul e 
in this Section befor e May 1, 1997, shall continu e to comply 
with all such applicable rule s in thi s Section. — If any county 
or part of a county to which the Section applie s in accor 
danc e with Paragraph (c) of this Rul e is lat e r d e signated in 
40 CFR 81.33 ' 1 as attainm e nt for ozon e , all sourc e s in that 



(3) emissions of volatile organic compounds during 
startup or shutdown operations from sources 
which use incineration or other types of combus- 
tion to control emissions of volatile organic 
compounds whenever the off-gas contains an 
explosive mixture during the startup or shutdown 
operation if the exemption is approved by the 
Director as meeting the requirements of this 
Subparagraph. 
<^(i) Sources whose emissions of volatile organic 
compounds are not subject to limitation under this Section 
may still be subject to emission limits on volatile organic 
compounds in R«ie Rules .0518, .0524, . 1 1 10, or . 1 1 1 1 of 
this Subchapter. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(5). 

.0907 COMPLIANCE SCHEDULES FOR SOURCES 
IN NONATTAINMENT AREAS 

(a) With tho exceptions in Pamgmph (b) of this Rulo, this 
Rule appUoa to all sources covered by Paragraph (c) of Rulo 
.0902 of this Section on May 1, 1997. that are subjoct to 
Rules .0917 through .0921, .0929 through .0931. .093 4 
through .093 8 , .09 4 3 through .0915, and .09 4 7 through 
.0951 of this Section. 
— fb^ — This Rul e doea not apply to: 

(4) Bouro e a in M e cklenburg County to which Rul e s 

.0917 through .0938 of this Section apply and 
which arc located at a facility where tho total 
pot e ntial e missions of volatil e organic compounds 
from all stationar)' aouroes at tho facility i s 100 
tons per year or more, or 

(3) s ource s covered under Rulo .09 4 6, .0053, or 

.0951 of this Section, 
(o) Th e own e r or op e rator of any oouroo subj e ct to this 



county or that part of the county subj e ct to a rule in this Rulo who propose s to comply with a rulo in this Section by 

installing omission control equipment, replacing process 
e quipm e nt, or modify'ing e xisting proc e ss e quipm e nt, shall 



Section before the rcdcsignation date s hall continue to 
comply with all applicabl e rul e s in this S e ction. 
(g)Oll This Section does not apply to: 

(1) sources whose emissions of volatile organic 
compounds are not more than 15 pounds per day, 
except that this Section does apply to the manu- 
facture and use of cutback asphalt and to gasoline 
service stations or gasoline dispensing facilities 
regardless of levels of emissions of volatile 
organic compounds; 

(2) sources used exclusively for chemical or physical 
analysis or determination of product quality and 
commercial acceptance provided: 

(A) The operation of the source is not an inte- 
gral part of the production process; 

(B) The emissions from the source do not 
exceed 800 pounds per calendar month; 
and 

(C) The exemption is approved in writing by 
the Director as meeting the requirements of 
this Subparagraph; or 



adh e re to th e — follov i 'ing incr e m e nts of progress and ooh e d 

(4^ A permit application and a compliance schedule 

shall b e submitt e d b e for e May 1, 1997; 

{¥i Tli e oomplianoe sch e dul e shall contain tho follow 

ing increments of progress: 

(A3 a date by which contracts for tho omission 

control syst e m and prooons oquipmont shall 
b e awarded or ord e rs shall b e issuod for 
purchase of component parts; 

fB) a date by which on site construction or 

installation of th e e mi s sion control and 
proc e sD equipm e nt shall begin; and 

(G) a date by which on site construction or 

installation of tho omission control and 
procooD e quipm e nt shall bo oomplotod. 

(3^ Final oomplianoo shall b e achi e v e d by May 31, 

4^>99. 

The ov i Tier or operator shall ccrtiiy' to the Diroctor within 10 



478 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



days aftor the dcadlino, for each incromont of progroaa, 
whothor tho roquirod inoromont of progross hoo boon mot. 
— (d) Th e own e r or op e rator of any oouroe oubj e ot to thi s 
Rule who propooos to comply with a rulo in this Section by 
uaing low solvent content coating technology shall adhoro to 
tho following incromonto of progr e ss and ooh e dul e o: 
(4-) Tho p e rmit application and a oomplianoe ooh e dul e 

shall bo submitted before May 1. 1997. 
(33 Tho complianoe schedule shall contain tho follow 

ing increm e nts of progrooo: 
(A) a date by V i 'hioh r e s e arch and developm e nt 



of low solvent content coating shall bo 
oomplotod if tho Director determines that 
lo\^' oolvont content coating t e ohnolog)' has 
not boon ouffioiontly r e s e arch e d and d e v e l 
oped; 
-(B) a date by which evaluation of product 



qualit)' and comm e rcial acoeptono e shall b e 
compl e t e d; 
-(€) a date by which purchase orders shall be 



issued for low solvent content coatings and 
process modifications; 
-(B) a date by v i 'hioh proc e oo modifications shall 



be initiated; and 
-(E) a date by which process modifications shall 



bo compl e t e d and use of low solv e nt con 
tent coatings shall b e gin. 
-(3) Final compliance shall be achieved by May 31, 



W99t 
Tho ov^Tier or op e mtor shall c e rtify' to the Dir e ctor within 10 



days after the d e adline, for e ach incr e m e nt of progr e ss, 
whether the required increment of progress has been met. 



(e) Tho ov r Tior or op>emtor of sources subject to this Rule 
shall, if th e Director r e quires a t e st to d e monstrat e that 



compliance has boon achieved, conduct a t e st and submit a 



final test report within six months after tho stated date of 
final compliance. 



-(f) — With such e xc e ption as th e Dir e ctor may allow, th e 



own e r or op e rator of any sourc e oubj e ot to this Rul e shall 



continue to comply with 15 A NCAC 2D .051 8 until such 
time as tho source complies with applicable rules in this 



S e ction or until the final complianc e dat e s e t forth in this 



Rulo, which e v e r com e s first. — The Dir e ctor may allow th e 
following exceptions: 

(i) testing coating materials; 

(3) making or testing equipm e nt or proc e ss modifioa 

tions; or 

(3) adding or testing control d e vices. 

— (g) Tho owner or operator of any now source of volatile 
organic compounds not in e xist e nc e or und e r construction as 
of April 30. 1997, shall comply with all applicabl e rul e s in 
this Section upon start up of the source. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(5). 

.0909 COMPLIANCE SCHEDULES FOR SOURCES 
IN NEW NONATTAINMENT AREAS 



(a) With the exceptions in Paragraph (b) of this Rule, this 
Rule applies to all sources covered by Paragraph (d) or (o) 
Paragraphs (e), {f^ or (gi of Rule .0902 of this Section. 

(b) This Rule does not apply to: 

(1) sources in Mecklenburg County required to 
comply with the requirements of this Section 
under Rule .0902(c) of this Section; to which 
Rules .0917 through .093 8 apply and which ore 
located at a facility' whore tho totJil potential 
e misoiono of volatil e organic compounds from all 
stationary souroeo at tho faoilit)' is 100 tons per 
year or moro, or 

(2) sources covered under Rule .09 4 6, ,0953, .0953 
or .0954 of this Section. Section: or 

(3) sources required to comply with the requirements 
of this Section under Rule .0902(a) of this Sec- 
tion. 

(c) The owner or operator of any source subject to this 
Rule because of the application of Paragraph (d) or ( e ) 
Paragraphs (e), £f)^ or £g} of Rule .0902 of this Section shall 
adhere to the following increments of progress and sched- 
ules: 

(1) if compliance is to be achieved by installing 
emission control equipment, replacing process 
equipment, or modifying existing process equip- 
ment: 

(A) A permit application and a compliance 
schedule shall be submitted within six 
months after the Director notices in the 
North Carolina Register that an area is in 
violation of the ambient air quality standard 
for ozone; 

(B) The compliance schedule shall contain the 
following increments of progress: 

(i) a date by which contracts for the 
emission control system and process 
equipment shall be awarded or or- 
ders shall be issued for purchase of 
component parts; 
(ii) a date by which on-site construction 
or installation of the emission control 
and process equipment shall begin; 
and 
(iii) a date by which on-site construction 
or installation of the emission control 
and process equipment shall be com- 
pleted; 

(C) Final compliance shall be achieved within 
three years after the Director notices in the 
North Carolina Register that the area is in 
violation of the ambient air quality standard 
for ozone. 

(2) if compliance is to be achieved by using low 
solvent content coating technology: 

(A) A permit application and a compliance 
schedule shall be submitted within six 
months after the Director notices in the 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



479 



PROPOSED RULES 



North Carolina Register that an area is in 
violation of the ambient air quality standard 
for ozone; 

(B) The compliance schedule shall contain the 
following increments: 

(i) a date by which research and devel- 
opment of low solvent content coat- 
ing shall be completed if the Direc- 
tor determines that low solvent con- 
tent coating technology has not been 
sufficiently researched and devel- 
oped; 

(ii) a date by which evaluation of prod- 
uct quality and commercial accep- 
tance shall be completed; 
(iii) a date by which purchase orders 
shall be issued for low solvent con- 
tent coatings and process modifica- 
tions; 
(iv) a date by which process modifica- 
tions shall be initiated; and 

(v) a date by which process modifica- 
tions shall be completed and use of 
low solvent content coatings shall 
begin; 

(C) Final compliance shall be achieved within 
three years after the Director notices in the 
North Carolina Register that the area is in 
violation of the ambient air quality standard 
for ozone. 

(d) TTie owner or operator shall certify to the Director 
within five days after the deadline, for each increment of 
progress in Paragraph (c) of this Rule, whether the required 
increment of progress has been met. 

(e) If the Director requires a test to demonstrate that 
compliance has been achieved the owner or operator of 
sources subject to this Rule shall conduct a test and submit 
a final test report within six months after the stated date of 
final compliance. 

(f) With such exception as the Director may allow, the 
owner or operator of any source subject to this Rule shall 
continue to comply with 15A NCAC 2D .0518 until such 
time as the source complies with applicable rules in this 
Section or until the final compliance date set forth in this 
Rule, whichever comes first. The Director may allow the 
following exceptions: 

(1) testing coating materials; 

(2) making or testing equipment or process modifica- 
tions; or 

(3) adding or testing control devices. 

(g) The owner or operator of any new source of volatile 
organic compxDunds not in existence or under construction as 
of the date that the Director notices in the North Carolina 
Register in accordance with Pamgraph (d) or ( e ) Paragraphs 
(e). (f). or (g) of Rule .0902 of this Section that the area is 
in violation of the ambient air quality standard for ozone, 
shall comply with all applicable rules in this Section upon 



start-up of the source. 

(h) Paragraph Paragraphs (c), (d), and (f) of this Rule 
will not apply to sources that are in compliance with 
appUcable rules of this Section when the Director notices in 
the North Carolina Register that the area is In violation of 
the ambient air quality standard for ozone and that have 
determined and certified compliance to the satisfaction of the 
Director within six months after the Director notices in the 
North Carolina Register that the area is in violation. 

Authority G.S. 143-215. 3 (a)(1); 143-215. 107(a)(5). 

.0910 ALTERNATIVE COMPLIANCE SCHEDULES 

(a) If th e Direotor finds that th e application of a oompli 
onc e sch o dulo in Rulo .0907 of this S e ction would bo 
technologically or economically infcaaiblo for a oourco, ho 
may promulgate a different schodulo for that source. 
— fb) — Th e own e r or op e rator of a volatile organic com 
pound source aff e ct e d by a rulo in this S e ction may oubmi -t 
to the Director a proposed altomativo compliance achcdulo 

(4^ Th e propos e d alt e rnativ e complianc e sch e dul e is 

submitted befor e May 1, 1997; 

(33 Tho final control plans for achioving complionco 

aro submittod aimultonoously; 

(^9 Th e alt e rnativ e complianc e sch e dul e oontoina th e 

sam e incr e m e nts of progr e oo as tho ooh e dul e for 
which it is proposed as an altomativo; and 

(4) Sufficient documentation and certification from 

appropriat e suppU e rs, contractors, manufactur e rs, 
or fabricators ar e submitt e d to juotify' th e dates 
proposed for tho mcromonta of progress. 
— (e^ — Tho ov r 'ncr or operator of a volatile organic com 
poimd sourc e aff e ct e d by a rul e in thia S e ction may aubmit 
to th e Dir e ctor an alt e rnativ e compliance sch e dul e for th e 
phase out or shut down of a volatile organic compound 
source, if: 



-(4-) Th e propoood alternativ e complionco schedul e io 



submitt e d b e for e May I, 1997; and 



(3) Tho final control plan a for achioving compliance 

with ruloa of thia Section arc submitted simulta 
n e ously. 
(d) — All alt e rnativ e oompliano e soh e dul e a propoood or 
promulgated under this Rulo shall provide for compliance 
with tho applicable rulos as oxpoditiously as practicable but 
not lat e r than May 31, 1999. 

— fe) — Any s chedule approved und e r thia Rul e may b e 
revoked at any time if the source dooa not meet the incr e 
mont of progres s stipulated. 

— (4) — V i Ti e n an altomato complianc e aoh e dul e io promul - 
gat e d und e r thio Rul e , th o p e rmit ahall contain a condition 
stating tho oomplionco achcdulo. 

Authority G.S. 143-21 5. 3(a)(1): 143-215. 107(a)(5). 

.0911 EXCEPTION FROM COMPLUNCE 
SCHEDULES 



4S0 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



Rulo .0907 of this Section will not apply to sourco3 that 
arcs in oomplianoo with applioablo ruloB of this Sootion 
boforo May 1, 1996, and that hav e d e termin e d and oortified 
complianco to tho satisfaction of tho Diroctor boforo August 
1, 1996. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(5). 

.0946 COMPLIANCE SCHEDULE: GASOLINE 
HANDLING 

(a) With tho oxoeption in Paragraph (b) of this Rul e , this 
Rulo appUca to all sources covered by Rules .0925, .0926, 
.0927, .0928, .0932, or .0933 of this Section. 
— (b) Thio Rulo does not apply to oourooo in M e ckl e nburg 
Count>ao which Rul e s .0925, .0926, .0927, .092 8 , .0932, 
or .0933 of this Section apply and which are located at a 
facility where tho total potential — omissions of volatile 
organic compounds from all stationary' sourc e s at th e facility 
are 100 tons p e r year or mor e . 

— (c) The ov r Ticr or operator of any bulk gasoline plant or 
bullc gasoline terminal subject to this Rulo and Rulo .0926 
or .0927 of this S e ction or any tank subject to this Rul e and 
Rul e .0925 or .0933 of this S e ction and located at a bulk 
gasoline plant or bullc gasoline terminal subject to this Rulo 
and Rulo .0926 or .0927 of this Section shall adhoro to tho 
following incr e ments of progr e ss and schedul e s: 

(4) Th e air permit application including final plans 

and a complianco schedule shall bo submitted 
before November 1, 1990; 

(3) Th e complianc e schedul e shall contain the follow 

ing increments of progr e ss: 

(t^) a date by which contracts for the emission 

control system and/or process equipment 
shall bo award e d or orders shall b e issu e d 
for purchase of compon e nt parts; 

(B) a dato by which on site construction or 

installation of tho omission control and/or 
process e quipm e nt shall b e gin; 

(G) a dat e by which on site construction or 

installation of tho omission control and/or 
process equipment shall bo completed; and 

(^3 Final complianc e shall b e achi e v e d by 

Nov e mb e r 1, 1992. 
Tho owner or operator shall cortify' to tho Diroctor prior to 
tho date five days after the deadline for each increment 
wh e th e r the requir e d incr e m e nt of progr e ss has boon mot. 
— (d) Th e ov . Tier or op e rator of any gasolin e s e rvic e station 
or gasoline dispensing facility subject to this Rulo and Rulo 
.0928 of this Section shall comply with Rules .092 8 . .0932, 
.0925, and .0933 of thi s S e ction by Nov e mb e r 1, 1992. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(5). 

.0954 STAGE H VAPOR RECOVERY 

(a) Applicability. In accordance with Paragraphs (d) or 
^ (SX (fl, or (gl of Rule .0902 of this Section, this Rule 
applies to the control of gasoline vapors at the vehicle fill- 



pipe during refueling operations at a facility. The vapors 
shall be captured and returned to a vapor-tight underground 
storage tank or shall be captured and destroyed. These 
systems shall be installed at all facilities that dispense 
gasoline to motor vehicles unless exempted under Paragraph 
(b) of this Rule. 

(b) Exemptions. The following gasoline dispensing 
faculties are exempt from this Rule based upon the previous 
two years records: 

(1) any facility which dispenses less than 10,000 
gallons of gasoline per calendar month; 

(2) any facility which dispenses less than 50,000 
gallons of gasoline per calendar month and is an 
independent small business marketer of gasoline; 

(3) any facility which dispenses gasoline exclusively 
for refueling marine vehicles, aircraft, farm 
equipment, and emergency vehicles; or 

(4) any tanks used exclusively to test the fuel dispens- 
ing meters. 

Any facility that ever exceeds the exemptions given in 
Subparagraphs (1), (2), (3) or (4) in this Paragraph shall be 
subject to all of the provisions of this Rule in accordance 
with the schedule given in Subparagraph (f) of this Rule, 
and shall remain subject to these provisions even if the 
facility's later operation meets the exemption requirements. 

(c) Proof of EligibUity. The burden of proof of eligibil- 
ity for exemption firom this Rule is on the owner or operator 
of the facility. Persons seeking an exemption from this 
Rule shall maintain the following: 

(1) chronologically arranged bills of lading for receipt 
of gasoline shipments from the last three years, 
and 

(2) daily inventory of each gasoline type for each day 
of operation or equivalent records as required; 
this shall be maintained for the last three years. 

These records shall be furnished to the Director upon 
request. 

(d) Definitions. For the purpose of this Rule, the 
following definitions apply: 

(1) "CARB" means the California Air Resources 
Board. 

(2) "Certified STAGE n Vapor Recovery System" 
means any system certified by the California Air 
Resources Board as having a vapor recovery or 
removal efficiency of at least 95 percent by 
weight. 

(3) "Defective equipment" means any absence, dis- 
connection, or malfunction of a Stage 11 vapor 
recovery system component which is required by 
this Rule including the following: 

(A) a vapor return line that is crimped, flat- 
tened or blocked or that has any hole or slit 
that allows vapors to leak out; 

(B) a nozzle bellows that has any hole or tear 
large enough to allow a 1/4 inch diameter 
cylindrical rod to pass through it or any slit 
one inch or more in length; 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



481 



PROPOSED RULES 



(C) a nozzle face-plate or cone that is torn or 
missing over 25 percent of its surface; 

(D) a nozzle with no automatic overfill control 
mechanism or an inoperable overfill control 
mechanism; 

(E) an inoperable or malfunctioning vapor 
processing unit, vacuum generating device, 
pressure or vacuum relief valve, vapor 
check valve or any other equipment nor- 
mally used to dispense gasoline, or that is 
required by this Rule; or 

(F) a failure to meet the requirements of Para- 
graph (g) of this Rule. 

(4) "Facility" means any gasoline service station, 
gasoline dispensing facility, or gasoline cargo 
tanker. 

(5) "ISBM" means independent small business mar- 
keter. 

(6) "Independent Small Business Marketer of Gaso- 
line" means a facility that qualifies under Section 
324 of the Federal Clean Air Act. 

(7) "Operator" means any person who leases, oper- 
ates, controls, or supervises a facility at which 
gasoline is dispensed. 

(8) "Owner" means any person who has legal or 
equitable title to the gasoline storage tank at a 
facility. 

(9) "Pressure Balanced Stage U System" means one 
which is not vacuum-assisted. That is, the vol- 
ume of vapor in the automobile's fuel tank dis- 
placed by the incoming liquid gasoline equals the 
space in the underground tank created by the 
gasoline leaving. 

(10) "Remote Vapor Check Valve" means a check 
valve in the vapor return line but not located in 
the nozzle. 

(11) "Stage n Vapor Recovery" means to the control 
of gasoline vapor at the vehicle fill-pipe, where 
the vapors are captured and returned to a va- 
por-tight storage tank or are captured and de- 
stroyed. 

(12) "TTiroughput" means the amount of gasoline 
dispensed at a facility during any calendar month 
after June 30, 1994. 

(e) Stage II Requirements. No person shall transfer or 
permit the transfer of gasoline into the fuel tank of any 
motor vehicle at any applicable facility unless: 

(1) the transfer is made using a Certified Stage II 
vapor recovery system that meets the require- 
ments of the inspections; 

(2) all installed Stage II vapor recovery systems use 
coaxial vapor recovery hoses; no dual-hose de- 
signs shall be used; 

(3) all installed Stage II vapor recovery systems used 
are certified by CARB except that the Stage I 
system need not be CARB certified. In addition, 
no Stage II system shall employ a remote vapor 



check valve. Pressure balanced Stage U systems 

may be used; and 
(4) the underground vapor return piping satisfies the 

requirements of Rule .0953 of this Subchapter. 
In the event that CARB revokes certification of an installed 
system, the owner or operator of the facility shall have four 
years to modify his equipment to conform with re-certifica- 
tion requirements unless modifications involve only the 
replacement of dispenser check valves, hoses, or nozzles or 
appurtenances to these components in which case the 
allowed time period is three months. This time period is 
defined as the period from the day that the owner or 
operator of the facility has been officially notified by the 
Director. 

(f) CompUance Schedule. If the gasoline service station 
or gasoline dispensing facility is subject to the requirements 
of this Rule in accordance with Paragraph (d) or (o) Para- 
graphs (e), (f), or (g) of Rule .0902 of this Section, compli- 
ance shall be achieved no later than: 

(1) one year from the date that the Director notices in 
the North Carolina Register that an area is in 
violation of the ambient air quality standard for 
ozone, for facilities having any single monthly 
throughput of at least 100,000 gallons per month; 

(2) two years from the date that the Director notices 
in the North Carolina Register that an area is in 
violation of the ambient air quality standard for 
ozone, for facilities having any single monthly 
throughput of greater than 10,000 gallons but less 
than 100,000 gallons; 

(3) for affected facilities owned by a single ISBM: 

(A) one year from the date that the Director 
notices in the North Carolina Register that 
an area is in violation of the ambient air 
quality standard for ozone, for 33 percent 
of affected facilities; 

(B) two years from the date that the Director 
notices in the North Carolina Register that 
an area is in violation of the ambient air 
quality standard for ozone, for 66 percent 
of the affected facilities; 

(C) three years from the date that the Director 
notices in the North Carolina Register that 
an area is In violation of the ambient air 
quahty standard for ozone, for the remain- 
der of the affected facilities; 

(4) 18 months after the day the owner or operator of 
the facQity has been notified by the Director that 
his exemption under Paragraph (b) of this Rule 
has been revoked; or 

(5) before beginning operation for islands constructed 
after the Director notices in the North Carolina 
Register that an area is in violation of the ambient 
air quality standard for ozone. 

(g) Testing Requirements 

(1) Within 30 days after the commencement of opera- 
tion of the Stage U system and every five years 



482 



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11:8 



PROPOSED RULES 



thereafter, the owner or operator of the facility 
shall submit reports of the following tests as 
described in EPA-450/3-9I-022b: 

(A) Bay Area Source Test Procedure ST-30, 
Leak Test Procedure, or San Diego Test 
Procedure TP-91-1, Pressure Decay/Leak 
Test Procedure every five years; 

(B) Bay Area Source Test Procedure ST-27, 
Dynamic Back Pressure, or San Diego Test 
Procedure TP-91-2, Pressure Drop vs 
Flow/Liquid Blockage Test Procedure 
every five years; and 

(C) Bay Area Source Test Procedure ST-37, 
Liquid Removal Devices every five years. 

If the tests have been performed within the last 
two years the owner or operator may submit a 
copy of those tests in lieu of retesting. Testing 
shall be in accordance with Rule .0912 of this 
Section. 

(2) The owner or operator shall perform daily testing 
and inspections as follows: 

(A) daily tests to ensure proper functioning of 
nozzle automatic overfill control mecha- 
nisms and flow prohibiting mechanisms, 
and 

(B) daily visual inspection of the nozzle bel- 
lows and face-plate. 

(3) The owner or operator of the facility and the test 
contractor shall report all test failures to the 
Regional Office Supervisor within 24 hours of the 
failure. 

(4) The Director may require the owner or operator 
of the facility to perform any of the tests in 
Subparagraph (1) of this Paragraph if there are 
any modifications or repairs. 

(5) Where the Air Quality Division conducts tests or 
upon requirement from the Director to test the 
vapor control system it shall be without compen- 
sating the owner or operator of the facility for any 
lost revenues incurred due to the testing proce- 
dure. 

(h) Operating Instructions and Posting 
(1) The owner or operator of the facility shall post 
operating instructions for the vapor recovery 
system on the top one-third of the front of each 
gasoline dispenser to include the following: 

(A) a clear description of how to correctly 
dispense gasoline with the vapor recovery 
nozzles, 

(B) a warning that repeated attempts to con- 
tinue dispensing gasoline, after the system 
has indicated that the vehicle fuel tank is 
full (ty automatically shutting off), may 
result in spillage or recirculation of gaso- 
line, 

(C) a telephone number to report problems 
experienced with the vapor recovery system 



to the owner or operator of the facility, and 

(D) a telephone number to report problems 

experienced with the vapor recovery system 

to the Director. 

(2) The owner or operator shall provide written 

instructions on site as detailed in EPA -450/3 -91- 

022b to insure that employees of the facility have 

an accurate understanding of the operation of the 

system and, in particular, when the system is 

malfunctioning and requires repair. 

(i) Other General Requirements. The owner or operator 

of the faciUty shall conspicuously post "Out of Order" signs 

on any nozzle associated with any aboveground part of the 

vapor recovery system which is defective until the system 

has been repaired to bring it back into compliance with this 

Rule. 

(j) Record-keeping and Reporting. Owners or operators 
of the facility shall maintain records In accordance with 
Rule .0903 of this Section on compliance and testing. 

(k) Referenced document. EPA-450/3-91-022b, "Techni- 
cal Guidance - Stage n Vapor Recoveiy Systems for Control 
of Vehicle Refueling Emissions at Gasoline Dispensing 
Facilities, Volume II: Appendices", November 1991, cited 
in this Rule is hereby incorporated by reference and does 
not include subsequent amendments or editions. A copy of 
this document is available for inspection at the Regional 
Offices of the North Carolina Department of Environment, 
Health, and Natural Resources (addresses are given in Rule 
.0103 of this Subchapter). Copies of this document may be 
obtained through the Library Services Office (MD-35), U. 
S. Environmental Protection Agency, Research Triangle 
Park or National Technical Information Services, 5285 Port 
Royal Road, Springfield VA 22161. The NTIS number for 
this document is PB-92132851 and the cost is fifty-two 
dollars ($52.00). 

Authority G.S. 143-215.3 (a)(1); 143-215. 107(a); 150B-21.6. 

SECTION .1100 - CONTROL OF TOXIC AIR 
POLLUTANTS 

.1110 NATIONAL EMISSION STANDARDS FOR 
HAZARDOUS AIR POLLUTANTS 

(a) Sources omitting pollutants of the following typo s 
when With the exception of Paragraph (h) of this Rule, 
sources subject to national emission standards for hazardous 
air pollutants promulgated in 40 CF^ Part 6 1 shall comply 
with emission standards, monitoring and reporting require- 
ments, maintenance requirements, notification and record 
keeping requirements, performance test requirements, test 
method and procedural provisions, and any other provisions, 
as required therein, rather than with any otherwise-applica- 
ble Rule in Section .0500 of this Subchapter which that 
would be in conflict therewith. N e w oouroo o of volatilo 
orgonio oompoundo that ar e locat e d In on ar e a d e oignatod in 
4 CFR 8 1.33 4 as nonattainmont for ozono or in an area 
idontifiod in accordanco with 15A NCAC 2D .0902(c) aa 



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483 



PROPOSED RULES 



being in violation of tho ambient air quality standard for 

ozone shall comply with the following r e quirem e nto, ao w e ll 

as with any applicable r e quiromontii in S e ction .0900 of thio 

Subchapter: 

1^ asbestos ( 4 CFR 61.01 to 61.10 and 61.1 4 to 

61.159, Subpart M, with th e e xception nam e d in 

10 CFR 61.157); 
(3) bor>'llium (40 CFR 61.01 to 61.1 9 and 61.30 to 



61.39. Subpart C); 



(^ beryllium from rocket motor firing (10 CFR 

61.01 to 61.19 and 61.10 to 61. 19, Subpart D); 
(4) mercury- (40 CFR 61.01 to 61.19 and 61.50 to 

61.59, Subpart E); 
(5^ vinyl chloride (10 CFR 61.01 to 61.19 and 61.60 

to 61.71. Subpart F); 
(6) equipment Icalcs (fugitive omission sources) of 

benzene (10 CFR 61.01 to 61.19 and 61.110 to 

61.119, Subpart J); 
(7^ equipm e nt looks (fugitive e mission oourooo) (of 

volatile hazardous air poUutxmts) (10 CFR 61.01 

to 61.19 and 61.210 to 61.2 4 9, Subpart V); 
(g) inorganic arsenic omiooions from glass manufao 

turing plants (10 CFR 61.01 to 61.19 and 61.160 

to 61.169, Subpart N); 
- — (9) inorganic arsenic emissions from primary' copper 

smeltors (10 CFR 61.01 to 61.19 and 61.170 to 

61.179, Subpart O); 
— (40) inorganic arsenic omissions from arsenic trioxido 

and mctalUc arsenic production facilities ( 4 CFR 

61.01 to 61.19 and 61.180 to 61.1 8 6, Subpart P); 
— (44) b e nz e n e omissiona from b e nz e n e tran s fer opera 

tions ( 4 CFR 61.01 to 61.19 and 61.300 to 

61.306, Subpart BB); 
— (45) b e nz e n e waste op e rations (40 CFR 61.01 to 61. 19 

and 61.340 to 61.358. Subpart FF); 
— (43) benzene emissions from coke by product recover)' 

plants (10 CFR 61.01 to 61.19 and 61.130 to 

61.139, Subpart L); and 
— (44) b e nzen e e mission s from bonzono storag e vessels 

( 4 CFR 61.01 to 61.19 and 61.270 to 61.277 

except 61.273, Subpart Y). 

(b) Along with the notice appearing in the North Carolina 
Register for a public hearing to amend this Rule to exclude 
a standard from this Rule, the Director shall state whether 
or not the national emission standards for hazardous air 
pollutants promulgated under 40 CFR Part 61. or part 
thereof, shall be enforced. If the Commission does not 
adopt the amendment to this Rule to exclude or amend the 
standard within 12 months after the close of the comment 
period on the proposed amendment, the Director shall begin 
enforcing that standard when 12 months has elapsed after 
the end of the comment period on the proposed amendment. 

(c) New sources of volatile organic compounds that are 
located in an area designated in 40 CFTl 81.334 as 
nonattainment for ozone or an area identified in accordance 
with 15A NCAC 2D .0902(e). (f). or (g) as in violation of 
the ambient air quality standard for ozone shall comply with 



the requirements of 40 CFR Part 61 that are not excluded 
by this Rule, as well as with any applicable requirements in 
Section .0900 of this Subchapter. 

fb^(d) All requests, reports, applications, submittals, and 
other communications to the administrator required under 
Paragraph (a) of this Rule shall be submitted to the Director 
of the Division of Environmental Management rather than 
to the Environmental Protection Agency; except that all such 
reports, applications, submittals, and other communications 
to the administrator required by 40 CFR 61.145 shall be 
submitted to the Director, Division of Epidemiology. 

(e)(e) In the application of this Rule, definitions con- 
tained in 40 CFR Part 61 shall apply rather than those of 
Section .0100 of this Subchapter. Subchapt e r when oonfliot 
oxioto. 

(d)£fl 15A NCAC 2Q .0102 and .0302 are not applicable 
to any source to which this Rule applies. The owner or 
op)erator of the source shall apply for and receive a permit 
as required in 15A NCAC 2Q .0300 or .0500. 

(o) Tho Code of Federal Regulations citod in thio Rule 
are incorporated by roforonco and ohaU automatically include 
any lat e r am e ndm e nts th e reto e xc e pt for oatogori e o of 
oouro e s not r e f e r e nc e d in Paragraph (a) of thio Rule. 
Categories of sources not roforoncod in Paragraph (a) of thi s 
Rule for which EPA has promulgated national omiaoion 
standardo for hazordouo air pollutimto in 40 CFH Part 6V r^ 
and wh e n incorporated into thio Rule, ohall b e incorporated 
using rulo making procedures. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(5); 150B- 
21.6. 



.1111 MAXIMUM ACHIEVABLE CONTROL 
TECHNOLOGY 

(a) With the exception of Paragraph (b) or (c) of this 
Rule, sources subject to national emission standards for 
hazardous air pollutants for source categories promulgated 
in 40 CFR Part 63 shall comply with emission standards, 
monitoring and reporting requirements, maintenance 
requirements, notification and record keeping requirements, 
performance test requirements, test method and procedural 
provisions, and any other provisions, as required therein, 
rather than with any otherwise-applicable Rul e rule in 
Section .0500 of this Subchapter which would be in conflict 
therewith. 

(b) The following are not included under this Rule: 

(1) approval of state programs and delegation of 
federal authorities (40 CFR 63.90 to 63.96, 
Subpart E); and 

(2) requirements for control technology determined 
for major sources in accordance with Clean Air 
Act Sections 112(g) and 112(j) (40 CFR 63.50 to 
63.57, Subpart B). 

(c) Along with the notice appearing in the North Carolina 
Register for a public hearing to amend this Rule to exclude 
a standard from this Rule, the Director shall state whether 
or not the national emission standard for hazardous air 



484 



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11:8 



PROPOSED RULES 



pollutants for source categories promulgated under 40 CFR 
Part 63, or part thereof, shall be enforced. If the Commis- 
sion does not adopt the amendment to this Rule to exclude 
or amend the standard within 12 months after the close of 
the comment period on the proposed amendment, the 
Director shall begin enforcing that standard when 12 months 
has elapsed after the end of the comment period on the 
proposed amendment. 

(d) New sources of volatile organic compounds that are 
located in an area designated in 40 CFR 81.334 as 
nonattainment for ozone or an area identified in accordance 
with 15A NCAC 2D .0902 .0902(d) as being in violation of 
the ambient air quality standard for ozone shall comply with 
the requirements of 40 CFR Part 63 that are not excluded 
by this Rule as well as with any applicable requirements in 
Section .0900 of this Subchapter. 

(e) All requests, reports, applications, submittals, and 
other communications to the administrator required under 
Paragraph (a) of this Rule shall be submitted to the Director 
of the Division of Environmental Management rather than 
to the Environmental Protection Agency. 

(f) In the application of this Rule, definitions contained 
in 40 CFR Part 63 shall apply rather than those of Section 
.0100 of this Subchapter when conflict exists. 

(g) 15A NCAC 2Q .0102 and .0302 are not applicable to 
any source to which this Rule applies if the source is 
required to be permitted under 15A NCAC 2Q .0500, Title 
V Procedures. The owner or operator of the source shall 
apply for and receive a permit as required in 15A NCAC 
2Q .0300 or .0500. Sources that have heretofore been 
exempted from needing a permit and become subject to 
requirements promulgated under 40 CFR 63 shall apply for 
a permit in accordance to 15A NCAC 2Q .0109. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(5); 150B- 
21.6. 

SECTION .1400 - NITROGEN OXffiES 

.1402 APPLICABILITY 

(a) The requirements of this Section shall only apply 
from April 1 through October 31. 

(b) With the exceptions stated in Paragraph (f)fd) of this 
Rule, this Section shall applv to: apply, in aooordonoo with 
Rule . 1 403 of this Section, to all aourcos of nitrogen oxides 
looatod in any of th e following ar e ao, and in that area only, 
when the Director notic e s in th e North Carolina R e gist e r 
that the area is in violation of the ambient air quality' 
gtondard for ozono: 

(1) Charlotte/Gastonia. consisting of Mecklenburg 
and Gaston Counties in accordance with Para- 
graph (c) of this Rule: 
Hr>(2) GreensboroAVinston-Salem/High Point, consisting 
of Davidson, Forsyth, and Guilford Counties and 
the part of Davie County bounded by the Yadkin 
River, Dutchmans Creek, North Carolina High- 
way 801, Fulton Creek and back to Yadkin River 



in accordance with Paragraph (d) of this Rule: te 
the extent n ee ded an d e t e rmin e d through photo 
ohomioal grid modeling; or 
(3M3) Raleigh/Durham, consisting of Durham and Wake 
Counties and Dutchville Township in Granville 
County in accordance with Paragraph (e) of this 
Rule, to th e e xtent needed as d e t e rmin e d through 
photochemical grid modeling. 
At looat one wook before the scheduled publication date of 
the North Carolina R e gist e r oontaining the Dir e ctor's notic e 
of violation, th e Dir e ctor shall send writt e n notifioation to 
all p > ormittt>d facilities within the area of violation that aro, 
or may bo, subject to the requirements of this Section as a 
result of the violation. Violations of th e ambi e nt air quality' 
standard for ozon e shall be dotormin e d in aooordano e with 
4 CFR 50. 9 . 

(c) If a violation of the ambient air quality standard for 
ozone is measured in accordance with 40 CFR 50.9 in 
Cabarrus, Gaston, Iredell, Lincoln, Mecklenburg, Rowan, 
or Union County, North Carolina or York County, South 
Carolina, the Director shall initiate analysis to determine the 
control measures needed to attain and maintain the ambient 
air quality standard for ozone. By the following May 1, the 
Director shall implement the specific stationary source 
control measures contained in this Section that are required 
as part of the control strategy necessary to bring the area 
into compliance and to maintain compliance with the 
ambient air quality standard for ozone. The Director shall 
implement the rules in this Section identified as being 
necessar>' by the analysis by notice in the North Carolina 
Register. The notice shall identify the rules that are to be 
implemented and shall identify whether the rules imple- 
mented are to apply in Gaston or Mecklenburg County or in 
both counties. At least one week before the scheduled 
publication date of the North Carolina Register containing 
the Director's notice implementing rules in this Section, the 
Director shall send written notification to all permitted 
facilities within the county in which the rules are being 
implemented that are or may be subject to the requirements 
of this Section informing them that they are or may be 
subject to the requirements of this Section. (For 
Mecklenburg County. "Director" means for the purpose of 
notifying permitted facilities in Mecklenburg County, the 
Director of the Mecklenburg County local air pollution 
control program.) Compliance shall be in accordance with 
Rule tO909 .1403 of this Section. 

{d} If a violation of the ambient air quality standard for 
ozone is measured in accordance with 40 CFR 50.9 in 
Davidson. Forsyth, or Guilford County or that part of Davie 
County bounded by the Yadkin River. Dutchmans Creek. 
North Carolina Highway 801. Fulton Creek and back to 
Yadkin River, the Director shall initiate analysis to deter- 
mine the control measures needed to attain and maintain the 
ambient air quality standard for ozone. By the following 
May Jj die Director shall implement the specific stationary 
source control measures contained in this Section that are 
required as part of the control strategy necessary to bring 



11:8 



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485 



PROPOSED RULES 



the area into compliance and to maintain compliance with 
the ambient air quality standard for ozone. The Director 
shall implement the rules in this Section identified as being 
necessary by the analysis by notice in the North Carolina 
Register. The notice shall identify the rules that are to be 
implemented and shall identify whether the rules imple- 
mented are to apply in Davidson, Forsyth, or Guilford 
County or that part of Davie County bounded by the Yadkin 
River. Dutchmans Creek. North Carolina Highway 801. 
Fulton Creek and back to Yadkin River or any combination 
thereof. At least one week before the scheduled publication 
date of the North Carolina Register containing the Director's 
notice implementing rules in this Section, the Director shall 
send written notification to all permitted facilities within the 
county in which the rules are being implemented that are or 
may be subject to the requirements of this Section informing 
them that they are or may be subject to the requirements of 
this Section. (For Forsyth County. "Director" means for 
the purpose of notifying permitted facilities in Forsyth 
County, the Director of the Forsyth County local air 
pollution control program.) Compliance shall be in accor- 
dance with Rule .1403 of this Section. 

(e) If a violation of the ambient air quality standard for 
ozone is measured in accordance with 40 CFR 50.9 in 
Durham or Wake County or Dutchville Township in 
Granville County, the Director shall initiate analysis to 
determine the control measures needed to attain and main- 
tain the ambient air quality standard for ozone. By the 
following May ]^ the Director shall implement the specific 
stationary source control measures contained in this Section 
that are required as part of the control strategy necessary to 
bring the area into compliance and to maintain compliance 
with the ambient air quality standard for ozone. The 
Director shall implement the rules in this Section identified 
as being necessary by the analysis by notice in the North 
Carolina Register. The notice shall identify the rules that 
are to be implemented and shall identify whether the rules 
implemented are to apply in Durham or Wake County or 
Dutchville Township in Granville County or any combina- 
tion thereof. At least one week before the scheduled 
publication date of the North Carolina Register containing 
the Director's notice implementing rules in this Section, the 
Director shall send written notification to aU permitted 
facilities within the county in which the rules are being 
implemented that are or may be subject to the requirements 
of this Section informing them that they are or may be 
subject to the requirements of this Section. Compliance 
shall be in accordance with Rule .1403 of this Section. 

fd^(f) This Section does not apply to: 

(1) any sources not required to obtain an air permit 
under 15A NCAC 2Q .0102; 

(2) any incinerator, or thermal or catalytic oxidizer 
used primarily for the control of air pollution; 

(3) emergency generators; 

(4) emergency use internal combustion engines; 

(5) stationary combustion turbines constructed before 
January 1. 1979, that operate no more than 16 



hours from April 1 through October 31; 
(6) facilities with a federally enforceable potential to 
emit nitrogen oxides of: 

(A) less than 100 tons per year; and 

(B) less than 560 pounds per calendar day from 
April 1 through October 31. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(5). 

.1403 COMPLIANCE SCHEDULES 

(a) This Rule applies to all sources covered by Paragraph 
(b) of Rule . 1402 of this Section. 

(b) The owner or operator of a source subject to this 
Rule because of the applicability of Paragraph (b) Para- 
graphs (c). (d). or £el of Rule • 1402 of this Section, shall 
adhere to the following increments of progress and sched- 
ules: 

(1) If compliance with this Section is to be achieved 
through a demonstration to certify compliance 
without source modification: 

(A) The owner or operator shall notify the 
Director in writing within six months after 
the Director's notice in the North Carolina 
Register that the source is in compliance 
with the applicable RACT limitation or 
RACT standard; 

(B) The owner or operator shall perform any 
required testing within 12 months after the 
Director's notice in the North Carolina 
Register to demonstrate compliance with 
the applicable RACT limitation in accor- 
dance with Rule .1404 of this Section; and 

(C) The owner or operator shall implement any 
required recordkeeping and reporting re- 
quirements within 12 months after the 
Director's notice in the North Carolina 
Register to demonstrate compliance with 
the applicable RACT standard in accor- 
dance with Rule .1404 of this Section. 

(2) If compliance with this Section is to be achieved 
through the installation of combustion modifica- 
tion technology or other source modification: 

(A) The owner or operator shall submit a per- 
mit application and a compliance schedule 
within six months after the Director's 
notice in the North Carolina Register. 

(B) The compliance schedule shall contain the 
following increments of progress: 

(i) a date by which contracts for instal- 
lation of the modification shall be 
awarded or orders shall be issued for 
purchase of component parts; 

(ii) a date by which installation of the 
modification shall begin; 

(iii) a date by which installation of the 
modification shall be completed; and 

(iv) if the source is subject to a RACT 



486 



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11:8 



PROPOSED RULES 



limitation, a date by which compli- 
ance testing shall be completed. 
(C) Final compliance shall be achieved within 
three years after the Director's notice in the 
North Carolina Register unless the owner 
or operator of the source petitions the 
Director for an alternative RACT limitation 
in accordance with Rule .1412 of this 
Section. If such a petition is made, final 
compliance shall be achieved within four 
years after the Director's notice in the 
North Carolina Register. 

(3) If compliance with this Section is to be achieved 
through the implementation of an emissions 
averaging plan as provided for in Rule .1410 of 
this Section: 

(A) The owner or operator shall abide by the 
applicable requirements of Subparagraphs 
(b)(1) and (b)(2) of this Rule for certifica- 
tion or modification of each source to be 
included under the averaging plan; 

(B) The owner or operator shall submit a plan 
to implement an emissions averaging plan 
in accordance with Rule .1410 of this 
Section within six months after the Direc- 
tor's notice in the North Carolina Register. 

(C) Final compliance shall be achieved within 
one year after the Director's notice in the 
North Carolina Register unless implementa- 
tion of the emissions averaging plan re- 
quires the modification of one or more of 
the averaging sources. If modification of 
one or more of the averaging sources is 
required, final compliance shall be 
achieved within three years. 

(4) If compliance with this Section is to be achieved 
through the implementation of seasonal fuel 
switching program as provided for in Rule .1411 
of this Section: 

(A) The owner or operator shall make all nec- 
essary modifications in accordance with 
Subparagraph (b)(2) of this Rule. 

(B) The owner or operator shall include a plan 
for complying with the requirements of 
Rule .1411 of this Section with the permit 
appUcation required under Part (A) of this 
Subparagraph. 

(C) Final compliance shall be achieved within 
three years after the Director's notice in the 
North Carolina Register. 

(c) The owner or operator shall certify to the Director, 
within five days after the deadline for each increment of 
progress in Paragraph (b) of this Rule, whether the required 
increment of progress has been met. 

(d) With such exception as the Director may allow, the 
owner or operator of any source subject to this Rule shall 
continue to comply with any applicable requirements for the 



control of nitrogen oxides until such time as the source 
complies with applicable rules in this Section or until the 
final compliance date set forth in this Rule, which ever 
comes first. The Director may allow the following excep- 
tions: 

(1) testing of combustion control modifications; or 

(2) adding or testing equipment or methods for the 
application of RACT. 

(e) The owner or operator of any new source of nitrogen 
oxides not in existence or under construction as of the date 
the Director notices in the North Carolina Register in 
accordance with Paragraph (a) or (b) Paragraphs (c), (d), or 
(e) of Rule .1402 of this Section, shall comply with all 
appUcable rules in this Section upon start-up of the source. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(5). 

SUBCHAPTER 2Q - AER QUALITY PERMIT 
PROCEDURES 

SECTION .0100 - GENERAL PROVISIONS 

.0102 ACTrvrriES exempted from permit 

REQUIREMENTS 

(a) If a source is subject to any of the following rules, 
then the source is not exempted from permit requirements, 
and the exemptions in Paragraph (b) of this Rule do not 
apply: 

(1) new source performance standards under 15A 
NCAC 2D .0524 or 40 CFR Part 60, except new 
residential wood heaters; 

(2) national emission standards for hazardous air 
pollutants under 15A NCAC 2D .0525 or 40 CFR 
Part 6 1 , except asbestos demolition and renova- 
tion activities; 

(3) prevention of significant deterioration under 15A 
NCAC 2D .0530; 

(4) new source review under 15A NCAC 2D .0531 
or .0532; 

(5) sources of volatile organic compounds subject to 
the requirements of 15A NCAC 2D .0900 that are 
located in Mecklenburg and Gaston Counties; 

(6) sources required to apply maximum achievable 
control technology for hazardous air pollutants 
under 15A NCAC 2D .1109 or under 40 CFR 
Part 63 or to apply generally available control 
technology (GACT) or work practice standards 
for hazardous air pollutants under 40 CFH Part 
63; or 

(7) sources at facilities subject to 15A NCAC 2D 
.1100. (If a source does not emit a toxic air 
pollutant for which the facility at which it is 
located has been evaluated, it shall be exempted 
from needing a permit if it qualifies for one of the 
exemptions in Paragraph (b) of this Rule). 

(b) The following activities do not need a permit or 
permit modification under this Subchapter; however, the 



11:8 



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487 



PROPOSED RULES 



Director may require tbie owner or operator of these 
activities to register them under 15 A NCAC 2D .0200: 
(1) activities exempted because of category (These 

activities shall not be included on the permit 

application or in the permit.): 

(A) maintenance, upkeep, and replacement: 

(i) maintenance, structural changes, or 
repairs which do not change the 
capacity of such process, 
fuel-burning, refuse-burning, or 
control equipment, and do not in- 
volve any change in quality or nature 
or increase in quantity of emission 
of regulated air pollutants; 
(ii) housekeeping activities or building 
maintenance procedures, including 
painting buildings, resurfacing 
floors, roof repair, washing, porta- 
ble vacuum cleaners, sweeping, use 
of janitorial products, or insulation 
removal: 
(iii) use of office supplies, supplies to 
maintain copying equipment, or 
blueprint machines, 
(iv) use of fire fighting equipment: 
(v) paving parking lots; or 
(vi) replacement of existing equipment 
with equipment of the same size, 
type, and function that does not 
result in an increase to the actual or 
potential emission of regulated air 
pollutants and that does not affect 
the compliance status, and with re- 
placement equipment that fits the 
description of the existing equipment 
in the f>ermit, including the applica- 
tion, such that the replacement 
equipment can be operated under 
that permit without any changes in 
the permit; 

(B) air conditioning or ventilation: comfort air 
conditioning or comfort ventilating systems 
which do not transport, remove, or exhaust 
regulated air pollutants to the atmosphere; 

(C) laboratory equipment: 

(i) laboratory equipment used exclu- 
sively for chemical or physical anal- 
ysis for quality control purposes, 
water or wastewater analyses, or 
environmental compliance assess- 
ments; 
(ii) non-production laboratory equipment 
used at non-profit health or 
non-profit educational institutions for 
chemical or physical analyses, bench 
scale experimentation or training, or 
instruction; or 



(iii) laboratory equipment used for chem- 
ical or physical analysis for bench 
scale experimentation, training, in- 
struction, or research and develop- 
ment that is not required to be per- 
mitted under Section .0500 of this 
Subchapter; 

(D) storage tanks: 

(i) storage tanks used solely to store 
fuel oils, kerosene, diesel, crude oil, 
used motor oil, natural gas, or 
liquified petroleum gas; 

(ii) storage tanks used to store gasoline 
for which there are no applicable 
requirements except Stage I controls 
under 15A NCAC 2D .0928; 

(iii) storage tanks used solely to store 
inorganic liquids; or 

(iv) storage tanks or vessels used for the 
temporary containment of materials 
resulting from an emergency re- 
sponse to an unanticipated release of 
hazardous materials; 

(E) combustion and heat transfer equipment: 

(i) space heaters burning distillate oil, 
kerosene, natural gas, or liquified 
petroleum gas operating by direct 
heat transfer and used solely for 
comfort heat; 

(ii) residential wood stoves, heaters, or 
fireplaces; 

(iii) hot water heaters which are used for 
domestic purposes only and are not 
used to heat process water; 

(F) wastewater treatment processes: industrial 
wastewater treatment processes or munici- 
pal wastewater treatment processes for 
which there are no appUcable requirements; 

(G) gasoline distribution: gasoline service 
stations or gasoline dispensing facilities that 
are not required to be permitted imder 
Section .0500 of this Subchapter; 

(H) miscellaneous: 

(i) motor vehicles, aircraft, marine 
vessels, locomotives, tractors or 
other self-propelled vehicles with 
internal combustion engines; 

(ii) equipment used for the preparation 
of food for direct on-site human 
consumption; 

(iii) a source whose emissions are regu- 
lated only under Section 112(r) or 
Title VI of the federal Clean Air Act 
that is not required to be permitted 
under Section .0500 of this Subchap- 
ter; 

(iv) exit gases from in-line process ana- 



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PROPOSED RULES 



lyzers; 
(v) stacks or vents to prevent escape of 
sewer gases from domestic waste 
through plumbing traps; 
(vi) refrigeration equipment that is con- 
sistent with Section 601 through 618 
of Title VI (Stratospheric Ozone 
Protection) of the federal Clean Air 
Act, 40 CFR Part 82, and any other 
regulations promulgated by EPA 
under Title VI for stratospheric 
ozone protection, except those units 
used as or in conjunction with air 
pollution control equipment; 
(vii) equipment not vented to the outdoor 
atmosphere with the exception of 
equipment that emits volatile organic 
compounds; 
(viii) equipment that does not emit any 
regulated air pollutants; or 
(ix) sources for which there are no appli- 
cable requirements and are not re- 
quired to be permitted under Section 
.0500 of this Subchapter. 
(2) activities exempted because of size or production 
rate (These activities shall not be included in the 
permit. If the facility is subject to the permitting 
procedures under Section .0500 of this Subchap- 
ter, these activities shall be listed on the permit 
applioQtions; application: otherwise, these activi- 
ties shall not be listed on the permit applioa 
tions.): application.): 

(A) storage tanks: 

(i) above-ground storage tanks with a 
storage capacity of no more than 
1 100 gallons storing organic liquids, 
excluding hazardous air pollutants, 
with a true vapor pressure of no 
more than 10.8 pounds per square 
inch absolute at 70°F; or 
(ii) underground storage tanks with a 
storage capacity of no more than 
2500 gallons storing organic liquids, 
excluding hazardous air pollutants, 
with a true vapor pressure of no 
more than 10.8 psi absolute at 70°F; 

(B) combustion and heat transfer e quipm e nt: 
equipment located at a facility not required 
to be permitted under Section .0500 of this 
Subchapter: 

(i) fuel combustion equipment, except 
for internal combustion engines, for 
which construction, modification, or 
reconstruction commenced after June 
9, 1989, firing exclusively kerosene. 
No. 1 fuel oil. No. 2 fuel oil, equiv- 
alent unadulterated fuels, natural 



gas, liquified petroleum gas, or a 
mixture of these fiiels with a heat 
input rating less than 10 million 
BTU per hour; 
(ii) fuel combustion equipment, except 
for internal combustion engines, for 
which construction, modification, or 
reconstruction commenced before 
June 10, 1989, firing exclusively: 
(I) kerosene. No. 1 fuel oil. No. 
2 fuel oil, equivalent unadul- 
terated fuels, or a mixture of 
these fiiels with gaseous fuels 
with a heat input rating less 
than 30 million BTU per 
hour, 
(II) natural gas or liquefied petro- 
leum gas with a heat input 
rating less than 65 million 
BTU per hour; 
(iii) space heaters burning waste oil if: 
(I) TTie heater bums only oil that 
the owner or operator gener- 
ates or used oil from 
do-it-yourself oil changers 
who generate used oil as 
household wastes; 
(II) The heater is designed to have 
a maximum capacity of not 
more than 500,000 Btu per 
hour; and 
(IE) The combustion gases from 
the heater are vented to the 
ambient air; 
(iv) emergency use generators and other 
internal combustion engines, except 
self-propelled vehicles, that have a 
rated capacity of no more than: 
(I) 310 kilowatts or 460 horse- 
power for natural gas-fired 
engines, 
(II) 830 kilowatts or 1150 horse- 
power for liquified petroleum 
gas-fired engines, or 
(m) 270 kilowatts or 410 horse- 
power for diesel-fired en- 
gines; 

(C) gasoline distribution: bulk gasoline plants 
with an average daily throughput of less 
than 4000 gallons that is not required to be 
permitted under Section .0500 of this Sub- 
chapter; 

(D) processes: printing, paint spray booths or 
other painting or coating operations without 
air pollution control devices (water wash 
and filters that are an integral part of the 
paint spray booth are not considered air 



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July 15, 1996 



489 



PROPOSED RULES 



pollution control devices) located at a 
facility whose facility-wide actual emissions 
of: 
(i) Volatile organic compounds are less 

than five tons per year, and 
(ii) Photochemically reactive solvent 

emissions under 15A NCAC 2D 

.0518 are less than 40 pounds per 

day; 
provided the facility is not required to be 
permitted under Section .0500 of this Sub- 
chapter. 

(E) miscellaneous: 

(i) any source without an air pollution 
control device with a potential to 
emit no more than five tons per year 
of each regulated pollutant that is not 
a hazardous air pollutant and whose 
emissions would not violate any 
applicable emissions standard and 
whose emissions of all hazardous air 
pollutants are below their respective 
lesser quality cutoff emission rates in 
40 CFR Part 63; 

(ii) any facility without an air pollution 
control device whose actual emis- 
sions of particulate, sulfur dioxide, 
nitrogen oxides, volatile organic 
compounds, or carbon monoxide are 
each less than five tons per year, 
whose emissions of all hazardous air 
pollutants are below their respective 
lesser quality cutoff emission rates in 
40 CFR Part 63, and which is not 
required to have a permit under 
Section .0500 of this Subchapter; 

(iii) emissions of any hazardous air pol- 
lutant where the emissions from the 
facility of that hazardous air pollut- 
ant is below its lesser quality cutoff 
emission rate in 40 CFH Part 63; 

(iv) electrostatic dry powder coating 
operations equipped with powder 
recovery including curing ovens with 
a heat input of less than 10,000,000 
BTXJ per hour; or 
(v) any incinerator covered under Para- 
graph (d) of 15A NCAC 2D .1201. 

(F) case-by-case exemption: 

(i) for activities located at facilities not 
required to have a permit under 
Section .0500 of this Subchapter, 
activities that the applicant demon- 
strates to the satisfaction of the Di- 
r e ctor Director: 

(I) to be negligible in their air 
quality impacts. 



(II) not to have any air pollution 

control device, and 
nn) not to violate any applicable 
emission control standard 
when operating at maximum 
design capacity or maximum 
operating rate, whichever is 
gr e ater, greater; or 
(ii) for activities located at facilities 
required to have a permit under 
Section .0500 of this Subchapter: 
activities that the applicant demon- 
strates to the satisfaction of the Di- 
rector: 
(1} to be negligible in their air 

quality impacts, 
(II) not to have any air pollution 

control device, 
(in) not to violate any applicable 
emission control standard 
when operating at maximum 
design capacity or maximum 
operating rate, whichever is 
greater, 
(lY) the potential emissions of 
each criteria pollutant is less 
than five tons per year, and 
(V) the potential emissions of 
each hazardous air pollutant is 
less than 1000 pounds per 
year. 

(c) Because an activity is exempted from being required 
to have a jDermit does not mean that the activity is exempted 
from any applicable requirement or that the owner or 
operator of the source is exempted from demonstrating 
compliance with any applicable requirement. 

(d) Emissions from stationary source activities identified 
in Paragraph (b) of this Rule shall be included in determin- 
ing compliance with the toxic air pollutant requirements 
under 15A NCAC 2D .1100 or 2H .0610. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(4); 
143-215. 108. 

.0104 WHERE TO OBTAEV AND FILE PERMIT 
APPLICATIONS 

(a) Official application forms for a permit or permit 
modification may be obtained from and shall be filed in 
writing with the Director, Division of Environmental 
Management, P.O. Box 29535, Raleigh, North Carolina 
27626-0535 or any of the regional offices listed under Rule 
.0105 of this Section. 

(b) The number of copies of applications to be filed are 
specified in Rules .0305 (construction and operation permit 
procedures), .0^05 (acid rain p e rmit proc e dur e s), .0507 
(Title V permit procedures), and .0602 (transportation 
facility construction air permit procedures) of this Subchap- 



490 



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11:8 



PROPOSED RULES 



ter. 



Authority G.S. 143-215. 3(a)(1); 143-215.108; 143-215.109. 

.0107 CONFTOENTIAL INFORMATION 

(a) All information required to be submitted to the 
Commission or the Director under this Subchapter or 
Subchapter 2D of this Title shall be disclosed to the public 
unless the person submitting the information can demon- 
strate that the information is entitled to confidential treat- 
ment under G.S. 143-215. 3C. 113 315.3(a)(2). 

(b) A request that information be treated as confidential 
shall be made by the person submitting the information at 
the time that the information is submitted, oubmittnl — is 
mad e . The request shall state in writing reasons why the 
information should be held confidential. Any request not 
meeting these requirements shall be invalid. 

(c) TTie Director shall make a preliminary determination 
of which information is entitled to confidential treatment and 
shall notify the person requesting confidential treatment of 
his decision within 90 days of receipt of a request to treat 
information as confidential. 



Authority G.S. 143-21 5. 3 (a)(1); 143-215. 3C. 

SECTION .0500 - TITLE V PROCEDURES 

.0507 APPLICATION 

(a) Except for: 

(1) minor permit modifications covered under Rule 
.0515 of this Section, 

(2) significant modifications covered under Rule 
.0516(c) of this Section, or 

(3) permit applications submitted under Rule .0506 of 
this Section, 

the owner or operator of a source shall have one year from 
the date of begiiming of operation of the source to file a 
complete application for a permit or permit revision. 
However, the owner or operator of the source shall not 
begin construction or operation until he has obtained a 
construction and operation p)ermit pursuant to Rule .0501(c) 
or (d) and Rule .0504 of this Section. 

(b) The application shall include all the information 
described in 40 CFR 70.3(d) and 70.5(c), including a list of 
insignificant activities exempted because of size or produc- 
tion rate under Rule .0102(b)(2) of this Subchapter, but not 
including insignificant activities exempted because of 
category under Rule .0102(b)(1) of this Subchapter. The 
application form shall be certified by a responsible official 
for truth, accuracy, and completeness. In the application 
submitted pursuant to this Rule, the applicant may attach 
copies of applications submitted pursuant to Section .0400 
of this Subchapter or 15A NCAC 2D .0530 or .0531, 
provided the information in those applications contains 
information required in this Section and is current, valid, 
and complete. 

(c) Application for a permit, permit revision, or permit 



renewal shall be made in accordance with Rule .0104 of this 
Subchapter on official forms of the Division and shall 
include plans and specifications giving all necessary data and 
information as required by the application form. Whenever 
the information provided on these forms does not describe 
the source or its air pollution abatement equipment to the 
extent necessary to evaluate the application, the Director 
may request that the applicant provide any other information 
that the Director considers necessary to evaluate the source 
and its air pollution abatement equipment. 

(d) Along with filing a complete application form, the 
applicant shall also file the following: 

(1) for a new facility or an expansion of existing 
faciUty, a consistency determination in accordance 
with G.S. 143-215. 108(f) that: 

(A) bears the date of receipt entered by the 
clerk of the local govermnent, or 

(B) consists of a letter from the local govern- 
ment indicating that all zoning or subdivi- 
sion ordinances are met by the facility; 

(2) for a new facility or modification of an existing 
facility, a written description of current and 
projected plans to reduce the emissions of air 
contaminants by source reduction and recycling in 
accordance with G.S. 143-215. 108(g); the de- 
scription shall include: 

(A) for an existing facility, a summary of 
activities related to source reduction and 
recycling and a quantification of air emis- 
sions reduced and material recycled during 
the previous year and a summary of plans 
for further source reduction and recycling; 
or 

(B) for a new facility, a summary of activities 
related to and plans for source reduction 
and recycling; and 

(3) if required by the Director, information showing 
that: 

(A) The applicant is fmancially qualified to 
carry out the permitted activities, or 

(B) The applicant has substantially complied 
with the air quality and emissions standards 
applicable to any activity in which the 
appUcant has previously been engaged, and 
has been in substantial compliance with 
federal and state environmental laws and 
rules. 

(e) The applicant shall submit copies of the application 
package as follows: 

(1) for sources subject to the requirements of 15A 
NCAC 2D .0530, .0531, or .1200, six copies 
plus one additional copy for each affected state 
that the Director has to notify; 

(2) for sources not subject to the requirements of 15A 
NCAC 2D .0530, .0531, or .1200, four copies 
plus one additional copy for each affected state 
that the Director has to notify. 



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July 15, 1996 



491 



PROPOSED RULES 



The Director may at any time during the application process 
request additional copies of the complete application package 
from the applicant. 

(f) Any applicant who fails to submit any relevant facts 
or who has submitted incorrect information in a permit 
application shall, upon becoming aware of such failure or 
incorrect submittal, submit, as soon as possible, such 
supplementary facts or corrected information. In addition, 
an applicant shall provide additional information as neces- 
sary to address any requirements that become applicable to 
the source after the date he filed a complete application but 
prior to release of a draft permit. 

(g) The applicant shall submit the same number of copies 
of additional information as required for the application 
package. 

(h) The submittal of a complete permit application shall 
not affect the requirement that any facility have a precon- 
struction permit under 15A NCAC 2D .0530, .0531, or 
.0532 or under Section .0400 of this Subchapter. 

(i) The Director shall give priority to permit applications 
containing early reduction demonstrations under Section 
112(i)(5) of the federal Clean Air Act. The Director shall 
take final action on such permit applications as soon as 
practicable after receipt of the complete permit application. 

(j) With the exceptions specified in Rule .0203 (i) of this 
Subchapter, a non-refundable permit application processing 
fee shall accompany each application. The permit applica- 
tion processing fees are defined in Section .0200 of this 
Subchapter. Each permit or renewal application is incom- 
plete until the permit application processing fee is received. 

(k) The applicant shall retain for the duration of the 
permit term one complete copy of the application package 
and any information submitted in support of the application 
package. 

Aurhonn- G.S. 143-215. 3(a)(1): 143-215. 107(a}(10); 143- 
215.1 OS. 

.0512 PERMIT SHIELD ANfD APPLICATION 
SHIELD 

(a) Permit Shield: 
(1) The Director shall place in a permit issued under 
this Section a permit term or condition (a permit 
shield) stating that compliance with the conditions 
of the permit shall be deemed compliance with 
applicable requirements specifically identified in 
the permit in effect as of the date of permit 
issuance, provided that: 

(A) Such applicable requirements are included 
and are specifically identified in the permit; 
or 

(B) The Director, m acting on the permit appli- 
cation or revision, determines in writing 
that other requirements specifically identi- 
fied are not applicable to the source, and 
the permit includes the determination or a 
concise summary thereof. 



(2) A permit that does not expressly state that a 
permit shield exists shall be presumed not to 
provide such a shield. 

(3) A permit shield shall not alter or affect: 

(A) the power of the Commission, Secretary of 
the Department, or Governor under G.S. 
143-215. 3(a)(12) or EPA under Section 303 
of the federal Clean Air Act; 

(B) the liability of an owner or operator of a 
facility for any violation of applicable 
requirements prior to the effective date of 
the permit or at the time of permit issu- 
ance; 

(C) the applicable requirements under Title IV; 
or 

(D) the ability of the Director (or EPA under 
Section 114 of the federal Clean Air Act) 
to obtain information to determine compli- 
ance of the facility with its permit, this 
Section, or Subchapter 2D of this Chapter. 

(4) A permit shield shall not apply to any change 
made at a facility that does not require a permit 
revision. 

(5) A permit shield shall not extend to minor permit 
modifications made under Rule .0515 of this 
Section. S e ction until th e minor permit modifica 
tion is approv e d by th e Dir e ctor and EPA; th e n 
the Director shall place a permit ahiold in the 
permit for the minor permit modification. 

(b) Application Shield. 

( 1 ) Except as provided in Subparagraph fb)(2) of this 
Rule, if the applicant submits a timely and com- 
plete application for permit issuance (including for 
renewal), the facility's failure to have a permit 
under this Section shall not be a violation: 

(A) unless the delay in final action is due to the 
failure of the applicant's timely submission 
of information as required or requested by 
the Director, or 

(B) until the Director takes fmal action on the 
permit application. 

(2) Subparagraph (b)(1) of this Rule shall cease to 
apply if, subsequent to the completeness determi- 
nation made under Rule .0507 of this Section, the 
applicant fails to submit by the deadline specified 
in writing by the Director, any additional informa- 
tion identified as being needed to process the 
application. 

Authority G.S. 143-215. 3(a)(1); 143-215. 107(a)(10); 
143-215. 108. 

.0514 ADMINISTRATIVE PERMIT AMENDMENTS 

(a) An "administrative permit amendment" means a 
permit revision that: 

(1) corrects typographical errors; 

(2) identifies a change in the name, address or tele- 



492 



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11:8 



PROPOSED RULES 



phone number of any individual identified in the 
permit, or provides a similar minor administrative 
change at the facility; 

(3) requires more frequent monitoring or reporting by 
the permittee; 

(4) changes test dates or construction dnteo; dates 
provided that no applicable requirements are 
violated by the change in test dates or construc- 
tion dates; 

(5) moves terms and conditions from the 
State-enforceable only portion of a permit to the 
State-and-federal- enforceable portion of the 
permit; permit provided that terms and conditions 
being moved have become federally enforceable 
through Section 110, 111, or 112 or other parts of 
the federal Clean Air Act; 

(6) moves terms and conditions from the fed- 
eral-enforceable only portion of a permit to the 
State-and-federal-enforceable portion of the 
permit; 

(7) changes the permit number without changing any 
portion of the permit that is federally enforceable 
that would not otherwise qualify as an administra- 
tive amendment; or 

(8) changes the State-enforceable only portion of the 
permit. 

(b) In making administrative permit amendments, the 
Director: 

(1) shall take final action on a request for an adminis- 
trative permit amendment within 60 days after 
receiving such request, 

(2) may make administrative amendments without 
providing notice to the public or any affected 
State(s) provided he designates any such permit 
revision as having been made pursuant to this 
Rule, and 

(3) shall submit a copy of the revised permit to EPA. 

(c) The permittee may implement the changes addressed 
in the request for an administrative amendment irrmiediately 
upon submittal of the request. 

(d) Upon taking final action granting a request for an 
administrative permit amendment, the Director shall allow 
coverage by the permit shield under Rule .0512 of this 
Section for the administrative permit amendments made. 

(e) Administrative amendments for sources covered under 
Title rV shall be governed by rules in Section .0400 of this 
Subchapter. 



Authority G.S. 143-215. 3 (a)(1); 
143-215. 108. 



143-215. 107(a)(10); 



.0515 MINOR PERMIT MODIFICATIONS 

(a) The procedures set out in this Rule may be used for 
permit modifications when the modifications: 

(1) do not violate any applicable requirement; 

(2) do not involve significant changes to existing 
monitoring, reporting, or recordkeeping require- 



ments in the permit; 

(3) do not require or change a case-by-case determi- 
nation of an emission limitation or other standard, 
or a source-specific determination for temporary 
sources of ambient impacts, or a visibility or 
increment analysis; 

(4) do not seek to establish or change a permit term 
or condition for which there is no corresponding 
underlying applicable requirement and that the 
facility has assumed to avoid an applicable re- 
quirement to which the facility would otherwise 
be subject. Such terms and conditions include: 

(A) a federally enforceable emissions cap as- 
sumed to avoid an applicable requirement 
under any provision of Title I of the federal 
Clean Air Act; or 

(B) an alternative emissions limit approved as 
part of an early reduction plan submitted 
pursuant to Section 1 12(i)(5) of the federal 
Clean Air Act; 

(5) are not modifications under any provision of Title 
I of the federal Clean Air Act; and 

(6) are not required to be processed as a significant 
modification under Rule .0516 of this Section. 

(b) In addition to the items required under Rule .0505 of 
this Section, an application requesting the use of the 
procedures set out in this Rule shall include: 

(1) an application form including: 

(A) a description of the change, 

(B) the emissions resulting from the change, 
and 

(C) identification of any new applicable re- 
quirements that will apply if the change 
occurs; 

(2) a list of the facility's other pending applications 
awaiting group processing and a determination of 
whether the requested modification, aggregated 
with these other applications, equals or exceeds 
the thresholds set out under Subparagraphs (c)(1) 
through (3) of this Rule; 

(3) the applicant's suggested draft permit; 

(4) certification by a responsible official that the 
proposed modification meets the criteria for using 
the procedures set out in this Rule and a request 
that these procedures be used; and 

(5) complete information for the Director to use to 
notify EPA and affected States. 

(c) The Director shall use group processing for minor 
permit modifications processed under this Rule. The 
Director shall notify EPA and affected States of the re- 
quested permit revisions under this Rule and shall provide 
the information specified in Rule .0522 of this Section on a 
quarterly basis. If the aggregated emissions from all 
pending minor permit modifications equal or exceed: 

(1) 10 percent of the emissions allowed for the source 
for which the change is requested, 

(2) 20 percent of the applicable definition of major 



11:8 



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July 15, 1996 



493 



PROPOSED RULES 



facilit)-. or 
(3) five tons per year, 
then the Director shall notify EPA and affected States within 
five business days of the requested permit revision under 
this Rule and provide the information specified in Rule 
.0522 of this Section. 

(d) Within 90 da\s after receiving a complete application 
that causes the thresholds in Paragraphs (c)(l ). (2). or (3) of 
this Rule to be exceeded or 15 da\'s after the end of EPA's 
45-da\- re\'iew period, uhichexer is later, the Director shall: 



permit related to the modification. 



Authority G.S. 
143-215.108. 



143-215. 3(a)(1); 143-215. 107(a)(10); 



ill 

Ql 



(4) 



issue the permit modification as proposed: 
deny the permit modification application: 
determine that the requested modification does not 
qualif.' for the procedures set out in this Rule and 
should therefore, be processed under Rule .0516 
of this Section: 



re\ise the draft permit modification and transmit 

the proposed permit to EPA. 
fd^tej If the thresholds in Paragraphs (c)(1). (2). and (3) 
of this Rule are not exceeded, the Director shall, within 
Within 180 days after recei\ing a completed application for 
a permit modification or 15 days after the end of EPA's 
45-day re\iew period, whichever is later: lat e r, the Director 

(1) issue the permit modification as proposed; 

(2) deny the permit modification application: 

(3) determine that the requested modification does not 
qualifS for the procedures set out in this Rule and 
should therefore, be processed under Rule .0516 
of this Section; 

(4) re\ise the draft permit modification and transmit 
the proposed permit to EPA, 

f»Kf) The permit applicant may make the change pro- 
posed in his minor permit modification application immedi- 
ateh after filing the completed application with the Division. 
After the applicant makes the change, the facilit}- shall 
comply with both the applicable requirements governing the 
change and the proposed permit terms and conditions until 
the Director takes one of the final actions specified in 
Paragraph (d)(1) through (d)(4) of this Rule. Between the 
filing of the pennit modification application and the Direc- 
tor's final action, the facility need not compl)' with the 
existing permit terms and conditions it seeks to modify . 
Howe\er, if the facility fails to comply with its proposed 
permit terms and conditions during this time period, the 
Director may enforce the terms and conditions of the 
existing permit that the applicant seeks to modifv'. 

tf)(g) The permit shield allowed under Rule .0512 of this 
Section shall not extend to minor permit modifications. 
modifications, — until — tbe — minor — p e rmit — modification — is 
approv e d b) th e Dir e ctor and EPA; th e n th e Dir e ctor shall 
place n permit s hield in the permit for the minor permit 
modification. 

fg^di) If the State-enforceable onl) portion of the permit 
is re\ ised, the procedures in Section .0300 of this Subchap- 
ter shall be followed. 

(fe^lil The proceedings shall affect only those parts of the 



.0517 REOPENING FOR CAUSE 

(a) A permit shall be reopened and revised under the 
following circumstances: 

(1) Additional applicable requirements become appli- 
cable to a facilify' with remaining permit term of 
three or more years; 

(2) Additional requirements (including excess emis- 
sions requirements) become applicable to a source 
covered by Title IV (Upon approval by EPA, 
excess emissions offset plans shall be deemed to 
be incorporated into the permit.): 

(3) The Director or EPA finds that the permit con- 
tains a material mistake or that inaccurate state- 
ments were made in establishing the emissions 
standards or other terms or conditions of the 
permit: or 

(4) The Director or EPA determines that the pennit 
must be revised or revoked to assure compliance 
uith the applicable requirements. 

(b) Any permit reopening under Subparagraph (a)(1) of 
this Rule shall be completed or a revised permit issued 
w ithin 1 8 months: months after the applicable requirement 
is promulgated. 

f44 after submittal of a complete application if an 

application i s r e quir e d, or 
<-2+ — aft e r th e applicabl e r e quir e ment is promulgated if 
no application is required. 
No reopening is required if the effective date of the require- 
ment is after the expiration of the permit t e rm, term unless 
the term of the permit was extended pursuant to Rule 
.0513(c) of this Section. 

(c) Except for the State-enforceable only portion of the 
permit, the procedures set out in Rule .0507, .0521, or 
.0522 of this Section shall be followed to reissue a perrtut 
that has been reopened under this Rule. If the 
State-enforceable only portion of the permit is reopened, the 
procedures in Section .0300 of this Subchapter shall be 
followed. The proceedings shall affect only those parts of 
the permit for which cause to reopen exists. 

(d) TTie Director shall notify the permittee at least 60 
days in ad\ance of the date that the permit is to be re- 
opened, except in cases of imminent threat to public health 
or safefy the Director may notify' the permittee less than 60 
days before reopening the permit. The notice shall explain 
why the permit is being reopened. 

(e) Within 90 days, or 180 days if EPA extends the 
response period, after receising notification from EPA that 
it finds that a permit needs to be terminated, modified, or 
revoked and reissued, the Director shall send to EPA a 
proposed determination of termination, modification, or 
re%'ocation and reissuance, as appropriate. 



494 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



Authority G. S. 
143-215.108. 



143-215. 3(a)(1); 143-215. 107(a)(10); 



«4;*4:»««««««4c»« 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Wildlife Resources 
Commission intends to amend rules cited as 15A NCAC lOB 
0106, .0123; 101 .0002. 

Proposed Effective Date: April 1, 1997 for 15A NCAC 
lOB .0123 and 101 .0002; July 1, 1997 for 15A NCAC lOB 
.0106. 

A Public Hearing will be conducted at 10:00 a.m. on July 
31, 1996 at the Third Floor Conference Room, Archdale 
Building, 512 N. Salisbury St. , Raleigh, NC 27604. 

Reason for Proposed Action: 

ISA NCAC 1 OB .0106 - to regulate/restrict taking posses- 
sion and disposal of wildlife taken for depredation or 
accidently. 

ISA NCAC 108 .0123 - to regulate/restrict import, posses- 
sion, sale, release, etc. of the tongueless or african clawed 

frog- 
ISA NCAC 101 .0002 - to regulate/restrict taking, purchase, 
importation, sale and trade, etc. of endangered/threatened 
and special concern species. 

Comment Procedures: Interested persons may present their 
views either orally or in writing at the hearing. In addition, 
the record of hearing will be open for receipt of written 
comments from July 15, 1996 through August 14, 1996. 
Such written comments must be delivered or mailed to the 
North Carolina Wildlife Resources Commission, 512 N. 
Salisbury Street, Raleigh, NC 27604-1188. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

CHAPTER 10 - WILDLHT: RESOURCES AND 
WATER SAFETY 

SUBCHAPTER lOB - HUNTING AND TRAPPING 



SECTION .0100 - GENERAL REGULATIONS 



.0106 



WILDLIFE TAKEN FOR DEPREDATION 
OR ACCIDENTLY 

(a) Depredation Permit: 
(1) Endangered or Threatened Species. No permit 
shall be issued to take any endangered or threat- 
ened species of wildlife listed under 15A NCAC 
101 by reason of depredations to property. An 
individual may take an endangered or threatened 



sp)ecies in immediate defense of his own life or of 
the lives of others without a permit. Any endan- 
gered or threatened species which may constitute 
a demonstrable but non-immediate threat to 
human safety shall be reported to a federal or 
state wildlife enforcement officer, who, upon 
verification of the report, may take or remove the 
specimen as provided by 15A NCAC 101 .0002. 

(2) Other Wildlife Species. Except as provided in 
Subparagraph (1) of this Paragraph, the Executive 
Director or an agent of the Wildlife Resources 
Commission may, upon application of a land- 
holder and after such investigation of the circum- 
stances as he may require, issue a permit to such 
landholder to take any sp>ecies of wildlife which is 
or has been damaging or destroyuig his property 
provided there is evidence of substantial property 
damage. No permit may be issued for the taking 
of any migratory birds and other federally pro- 
tected animals unless a corresponding valid U.S. 
Fish and Wildlife Service depredation permit has 
been issued. The permit shall name the species 
allowed to be taken and, in the discretion of the 
Executive Director or an agent, may contain 
limitations as to age, sex or any other condition 
within the species so named. The permit may be 
used only by the landholder or another person 
named on the permit. 

(3) WildUfe Damage Control Agents: Upon satisfac- 
tory completion of a Wildlife Resources Commis- 
sion approved training and satisfactory demonstra- 
tion of a knowledge of wildlife laws and safe, 
humane wildlife handling techniques, an individ- 
ual may apply to the Wildlife Resources Commis- 
sion (Commission) to become a Wildlife Damage 
Control Agent (WDCA). Those persons approved 
as agents by the Commission may then issue 
depredation permits to landholders and list them- 
selves as a second party to provide the control 
service. WDCA's may not issue depredation 
permits for big game animals, bats, or species 
listed as endangered, threatened or special con- 
cern under Rules 101 .0003, .0004 and .0005 of 
this Chapter. WDCA's must report to the Wild- 
life Resources Commission the number and 
disposition of animals taken, by county, annually. 
Records must be available for inspection by a 
Wildlife Enforcement officer at any time during 
normal business hours. WDCA status may be 
revoked at any time by the Executive Director 
when there is evidence of violations of wildlife 
laws, failure to report, or inhumane treatment of 
animals by the WDCA. WDCA's may not charge 
for the permit, but may charge for their investiga- 
tions and control services. In order to maintain a 
knowledge of current laws, rules, and techniques, 
WDCA's must renew their agent status every 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



495 



PROPOSED RULES 



three years by showing proof on having attended 
at least one Wildlife Commission approved train- 
ing course provided for the purpose of reviewing 
and updating information on wildlife laws and 
safe, humane wildlife handling techniques within 
the previous 12 months. 

(b) Term of Permit. Each depredation permit issued by 
the Executive Director or an agent shall have entered 
thereon a date or time of expiration after which date or time 
the same shall become invalid for any purpose, except as 
evidence of lawful possession of any wildlife that may be (2) 
retained thereunder. 

(c) Manner of Taking: 

(1) Taking Without a Permit. Wildlife taken without 
a permit while committing depredations to prop- 
erty may, during the open season on the species, 
be taken by the landholder by any lawful method. 
During the closed season such depredating wild- 
life may be taken without a permit only by the use 
of firearms. 

(2) Taking With a Permit. Wildlife taken under a 
depredation permit may be taken only by the 
method or methods specifically authorized by the 
permit. When trapping is authorized, in order to 
limit the taking to the intended purpose, the 
permit may specify a reasonable distance from the 
property sought to be protected, according to the 
particular circumstances, within which the traps 
must be set. The Executive Director or agent 
may also state in a permit authorizing trapping 
whether or not bait may be used and the type of 
bait, if any, that is authorized. In addition to any 
trapping restrictions that may be contained in the 
permit the method of trapping must be m accor- 
dance with the requirements and restrictions 
imposed by G.S. 1 13-291.6 and other local laws 

passed by the General Assembly. No depredation (3) 

permit shall authorize the use of poisons or 
pesticides in taking wildlife except in accordance 
with the provisions of the North Carolina Pesti- 
cide Law of 1971, the Structural Pest Control Act 
of 1955. and Article 22A of Chapter 1 13 of the 
General Statutes of North Carolina. No depreda- 
tion permit shall authorize the taking of wildlife 
by any method by any landholder upon the lands 
of another. 

(3) Intentional Wounding. It is unlawful for any 
landholder, with or without a depredation permit, 
intentionally to wound a wild animal in a manner (4) 
so as not to cause its immediate death as suddenly 

and humanely as the circumstances permit. 

(d) Disposition of Wildlife Taken: 

(1) Generally. Except as provided by the succeeding 
Subparagraphs of this Paragraph. an\ wildlife 
killed accidentally or without a permit while 
committing depredations shall be buried or other- 
wise disposed of in a safe and sanitary manner on 



the property. Wildlife killed under a depredation 
permit may be transported to an alternate disposal 
site if desired. Anyone in possession of carcasses 
of animals being transported under a depredation 
permit must have the depredation permit in their 
possession. Except as provided by the succeeding 
Subparagraphs of (d)(2) through (6) of this Rule, 
all wildlife killed under a depredation permit must 
be buried or otherwise disposed of in a safe and 
sanitary manner. 

Deer. The edible portions of up to five deer may 
be retained by the landholder for consumption but 
must not be transported from the property where 
the depredations took place without a valid depre- 
dation permit. An enforcement officer, if so 
requested by the permittee, shall provide the 
permittee a written authorization the use by a 
charitable organization of the edible portions of 
the carcass. The nonedible portions of the car- 
cass, including head, hide, feet, and antlers, shall 
be disposed of as specified in Subparagraph (1) of 
this Paragraph or turned over to a wildlife en- 
forcement officer for disposition. When a deer is 
accidentally killed on a road or highway by reason 
of collision with a motor vehicle, the law enforce- 
ment officer who investigates the accident shall, 
upon request of the operator of the vehicle, 
provide such operator a written permit authorizing 
him to possess and transport the carcass of such 
deer for his personal and lawful use, including 
delivery of such carcass to a second person for his 
private use or the use by a charitable organization 
upon endorsement of such permit to such person 
or organization by name and when no money or 
other consideration of value is received for such 
delivery or endorsement. 

Fox. Any fox killed accidentally by a dog or 
dogs, motor v e hicl e , or oth e nvis e shall be dis- 
posed of in the appropnate manner as provided by 
Subparagraph (1 ) or [6J of this Paragraph. Any 
fox killed under a depredation permit may be 
disposed of in the same manner or, upon compli- 
ance with the fur tagging requirements of 15A 
NCAC lOB .0400, the carcass or pelt thereof may 
be sold to a licensed fur dealer. Any live fox 
taken under a depredation permit may be sold to 
a licensed controlled hunting preserve for fox in 
accordance with G.S. 113-273(g). 
Furbeanng Animals. The carcass or pelt of any 
furbearing animal killed during the open season 
for taking such furbearing animal either acciden- 
tally or for control of depredations to property, 
whether with or without a permit, may be sold to 
a licensed fur dealer provided that the person 
offering such carcass or pelt for sale has a valid 
hunting or trapping license, provided further that, 
bobcats and otters may only be sold upon compli- 



4<J6 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



ance with any required fur tagging requirement 
set forth in 15A NCAC lOB .0400. 

(5) Animals Taken AHve. Wild animals m the order 
Carnivora and beaver shall be humanely 
euthanized either at the site of capture or at an 
appropriate facility designed to humanely handle 
the euthanasia or released on the property where 
captured. Anirnals transported or held for eutha- 
nasia must be euthanized within 12 hours of 
capture. Anyone in possession of live animals 
being transported for relocation or euthanasia 
under a depredation permit must have the depre- 
dation perinit in their possession. 

(6) A person killing a wild bird or wild animal 
accidentally with a motor vehicle or finding a 
dead wild bird or wild animal which was killed 
accidentally may possess that wild bird or wild 
animal for a period not to exceed 10 days for the 
purpose of delivering it to a licensed taxidermist 
for preparation. The licensed taxidermist may 
accept the wild bird or wild animal after satisfying 
himself that the animal was killed accidentally. 
The taxidermist shall certify and record the 
circumstances of acquisition as determined by his 
injury. Licensed taxidermists shall keep accurate 
records of each wildlife specimen received pursu- 
ant to the Rule as required by 15 A NCAC lOH 
.1003 of this Chapter. Upon delivery of the 
finished taxidermy product to the person present- 
ing the animal, the taxidermist shall give the 
person a receipt in the form required by the 
Wildlife Resources Commission indicating the 
species, date of delivery, circumstances of initial 
acquisition and any other information that may be 
required on the fonri. A copy of this receipt shall 
be filed with the Wildlife Resources Commission 
within 10 days of the date of delivery of the 
mounted specimen. The receipt shall serve as the 
non-transferable permit for continued possession 
of the mounted specimen and shall be retained by 
the person for as long as the mounted specimen is 
kept. Mounted specimens possessed pursuant to 
this Rule may not be sold and, if such specimens 
are transferred by gift or inheritance, the new 
owner must apply for a new permit and must 
submit the written receipt originally obtained from 
the taxidermist to document the legality of posses- 
sion. Tliis provision does not allow possession of 
accidentally killed raptors; migratory birds; 
species listed as endangered, threatened, or of 
special concern under Rules 101 .0003, .0004, 
and .0005 of this Chapter; bear or wild turkey. 

(e) Reporting Requirements. Any landholder who kills 
a deer, bear or wild turkey under a currently valid depreda- 
ion pemiit shall report such kill on the form provided with 
the permit and mail the form immediately upon the expira- 
tion date to the Wildlife Resources Commission. The 



killing and method of disposition of every game animal and 
game bird, every furbearing animal, and every nongame 
animal or nongame bird for which there is no open season, 
when killed for committing depredations to property, 
without a permit, shall be reported to the Wildlife Resources 
Commission within 24 hours following the time of such 
killing, except that when the carcass or pelt of a fox, killed 
under a depredation permit, or of a furbearing animal, killed 
with or without a permit, is lawfully sold to a licensed fur 
dealer in this State the fur dealer is required to report the 
source of acquisition and no report is required of the seller. 

Authority G.S. 113-134; 113-273; 113-274; 113-291.4; 
113-291.6; 113-300.1; 113-300.2; 113-307; 113-331; 
113-333; 11 3-3 34(a); 113-337. 

.0123 POSSESSION OF CERTAIN SPECIES OF 
WILDLIFE RESOURCES 

It is unlawful for any individual to import, transport, 
export, purchase, possess, or sell any species of Tongueless 
or African Clawed Frog (Xenopus spp.) or to stock or 
release them in the public or private waters or lands of 
North Carolina, except that they may b e po sse ss e d in indoor 
facilities of scientific and educational — institutions by as 
authorized under permit issued by the Executive Director 
pursuant to G.S. 113-274(cH4) and containing such condi 
tions and limitations as h e d ee ms n e c e ssar)'. and subject to 
limitations as specified in this Rule: 

(1) Importation, possession, sales, transportation, and 
exportation will be allowed under permit by retail 
and wholesale establishments whose primary 
function is providing scientific supplies for re- 
search; provided that they must be possessed m 
indoor facilities; and that all transportation of 
specimens provides adequate safeguards against 
accidental escape; and that sale or transfer is 
permitted only as listed in Item (2) of this Rule. 
Written applications for permits shall include 
plans for holding, transportation, advertisement, 
and sale in such detail as to allow a determination 
of the safeguards provided against accidental 
escape and sales to unauthorized individuals. 

(2) Purchase, importation, and possession of this 
species within North Carolina will be allowed 
under permit only by state and federal govern- 
mental agencies, corporate research entities, and 
research institutions; provided that sales are 
permitted to lawful out-of-state consumers; and, 
provided that they must be possessed m indoor 
facilities and that all transportation of specimens 
provides adequate safeguards against accidental 
escape; and that the agency's or institution's 
Animal Use and Care Committee has approved 
the research protocol for this species; and, further 
provided that no specimens may be stocked or 
released in the public or private waters or lands of 
North Carolina and may not be transferred to any 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



497 



PROPOSED RULES 



private individual. 

Amhority G.S. 113-134; 113-274; 113-292. 

SUBCHAPTER 101 - ENDANGERED AND 
THREATENED SPECIES 

.0002 PROTECTION OF ENDANGERED/ 
THREATENED/SPECIAL CONCERN 
SPECIES 

(a) No Open Season. There shall be no open season for 
taking any of the species listed as endangered in Rule .0003, 
threatened in Rule .0004 or, unless otherwise provided, as 
special concern in Rule .0005 of this Subchapter. Except as 
pro\ided in Paragraphs (b). (c) and (e) of this Rule, it is 
unlawful to take or possess any of such species at any time. 

(b) Permits. The executi\e director may issue permits to 
take an endangered, threatened, or special concern species 
for the purpose of scientific investigation relevant to 
perpetuation or restoration of said species or as a part of a 
commission-approved study or restoration effort. 

(c) Taking Without a Permit: 

(1) An individual may take an endangered, threat- 
ened, or special concern species in defense of his 
own life or the Uses of others without a permit. 

(2) A state or federal conservation officer or em- 
ployee who is designated by his agency to do so 
may, when acting in the course of his official 
duties, take, possess, and transport endangered, 
threatened, or special concern species without a 
permit if the action is necessary to: 

(A) aid a sick, injured, diseased or orphaned 
specimen; 

(B) dispose of a dead specimen; 

(C) salvage a dead specimen which may be 
useful for scientific study; or 

(D) remo\e specimens which constitute a de- 
monstrable but nonimmediate threat to 
human safety, provided the taking is done 
in a humane and noninjurious manner; the 
taking may involve injuring or killing 
endangered, threatened, or special concern 
species only if it is not reasonably possible 
to eliminate the threat by live-capmring and 
releasing the specimen unharmed, in a 
suitable habitat. 

(d) Reporting. Any taking or possession of an endan- 
gered, threatened, or special concern species under Subsec- 
tions (b) and (c) of this Rule is subject to applicable report- 
ing requirements of federal law and regulations and the 
reporting requirements of the permit issued by the Executive 
Director or of ISA NCAC lOB .0106(e). 

(e) Exception. 

( 1 ) Notwithstanding any other provisions of this Rule, 
processed meat and other parts of American 
alligators, which have been lawfully taken in a 
state in which there is an open season for har.'est- 



ing alligators, may be possessed, bought and sold 
when such products are marketed in packages or 
containers which are distinctly labeled to indicate 
the state in which they were taken and the iden- 
tity, location, and lawful authority of the proces- 
sor or distributor. 

(2) Raptors listed as special concern species in Rule 
.0005 of this Subchapter may be taken from the 
wild for falconry purposes and for falconry 
propagation, provided that a valid North Carolina 
endangered species permit has been obtained as 
required in Paragraph fb) of this Rule. 

(3) Captive-bred raptors listed as special concern 
sp>ecies may be bought, sold, bartered or traded as 
provided in 50 C.F.R. 21.30 when marked as 
required under those regulations. 

(4) Importation, possession, sales, transportation and 
exportation of species listed as special concern 
species in Rule .0005 of this Subchapter will be 
allowed under permit by retail and wholesale 
establishments whose primary function is provid- 



ing scientific supplies for research; provided that 
the specimens were lawfully obtained from cap- 
tive or wild populations outside of North Caro- 
lina; and that they must be possessed in indoor 
faciUties; and that all transportation of specimens 
provides adequate safeguards against accidental 
escaE>e; and that importation, possession and sale 
or transfer is permitted only as listed in this 
Subparagraph. 

(A) A written application to the Commission is 
required for a permit to authorize importa- 
tion, and possession for the purpose of 
retail or wholesale sale. The application 
shall identify the source of the specimens. 



and provide documentation of lawful acqui- 
sition. Applications for permits shall in- 
clude plans for holding, transportation. 



£B1 



advertisement, and sale in such detail as to 
allow a determination of the safeguards 
provided against accidental escape and sales 
to unauthorized individuals. 
Purchase, importation, and possession of 
special concern species within North Caro- 
lina will be allowed under permit to state 
and federal governmental agencies, corpo- 
rate research entities, and research institu- 



tions; provided that sales are permitted to 
out of state consumers: and, provided that 
they must be possessed in indoor facilities 
and that all transportation of specimens 
provides adequate safeguards against acci- 
dental escape; and that the agency's or 
institution's Animal Use and Care Commit- 
tee has approved the research protocol for 
this species; and, further provided that no 
specimens may be stocked or released in 



498 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



the public or private waters or lands of 
North Carolina and may not be transferred 
to any private individual. 

Authority G.S. 113-134; 113-291.2; 113-291.3; 113-292; 
113-333. 



Notice is hereby given in accordance with G.S. 
150B-21.2 tlwt the North Carolina Wildlife Resources 
Commission intends to amend rules cited as l^A NCAC lOB 
.0203, .0208 - .0209; WD .0002, .0003. 

Proposed Effective Date: July 1, 1997 

Public Hearings will he conducted at 7:00 p.m. at the 
following locations and dates: 

Monday, August 12, 1996 

District 1 

Swain Auditorium 

Edenton, NC 

Monday, August 12, 1996 

District 6 

North Stanly High School 

Albemarle, NC 

Monday, August 12, 1996 

District 9 

JacLwn County Justice Center 

Sylva, NC 

Tuesday, August 13., 1996 

District 2 

Courthouse 

New Bern, NC 

Tuesday, August 13, 1996 

District 5 

Courthouse 

Graham. NC 

Tuesday, August 13, 1996 

District 8 

Civic Center Auditorium 

Morganton, NC 

Wednesday, August 14, 1996 

Di.strict 3 

Courthouse 

Nashville, NC 

Wednesday, August 14, 1996 

District 4 

Courthouse 

Elizahethtown, NC 



Wednesday, August 14, 1996 

District 7 

High School 

Elkin, NC 

Reason for Proposed Action: 

15A NCAC lOB .0203 - to regulate/restrict taking of white- 
tailed deer. 

ISA NCAC 108 .0208 - to regulate/restrict take of quail. 
ISA NCAC lOB .0209 - to regulate/restrict take of wild 
turkey (bearded only). 

ISA NCAC lOD .0002 - to regulate/restrict the use of game 
lands. 

ISA NCAC lOD .0003 - to regulate/restrict hunting on 
game lands. 

Comment Procedures: Interested persons may present their 
views either orally or in writing at the hearings. In addi- 
tion, the record of hearing will be open for receipt of written 
comments from July 15, 1996 through August 14, 1996. 
Such written comments must be delivered or mailed to the 
North Carolina Wildlife Re.wurces Commission, 512 N. 
Salisbury Street. Raleigh, NC 27604-1188. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

SUBCHAPTER lOB - HUNTING AND TRAPPING 

SECTION .0200 - HUNTING 

.0203 DEER (\\HITE-T AILED) 

(a) Closed Season. All counties and parts of counties not 
listed under the open seasons in Paragraph (b) in this Rule 
shall be closed to deer hunting. 

(b) Open Seasons (All Lawful Weapons) 

(1) Male Deer With Visible Antlers. Male deer with 
antlers or spikes protruding through the skin, as 
distinguished from knobs or buttons covered by 
skin or velvet, may be taken during the following 
seasons: 

(A) Monday on or nearest October 15 through 
January 1 in all of Beaufort, Bertie, 
Bladen, Brunswick, Camden, Carteret, 
Chowan, Columbus*, Craven, Currituck. 
Dare, Duplin, Edgecombe, Franklin, 
Gates, Greene, Halifax, Hertford, Hoke, 
Hyde, Johnston, Jones, Lenoir, Martm, 
Nash, New Hanover, Northampton, On- 
slow, Pamlico, Pasquotank, Pender, 
Perquimans, Pitt, Richmond**, Robeson, 
Sampson, Scotland**, Tyrrell, Vance, 
Wake, Warren, Washington, Wayne, and 
Wilson counties, and the following parts of 
counties: 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



499 



PROPOSED RULES 



Cumberland: That part south of NC 24 or 
east of 1-95; 

Harnett: That part west of NC 87; 
Moore**: All of the county except that 
part north of NC 211 and west of US 1; 
♦Unlawful to hunt or kill deer in Lake 
Waccamaw or within 50 yards of its shore- 
line. 

**See I5A NCAC lOD .0003(f)(51)(C) for 
seasons on Sandhills Game Land. 

(B) Monday of Thanksgiving week through the 
third Saturday after Thanksgiving Day in 
all of Alexander, Alleghany, Ashe, Ca- 
tawba, Davie, Forsyth, Gaston, Iredell, 
Lincoln, Stokes, Surry, Watauga, Wilkes, 
and Yadkin counties. 

(C) Monday of Thanksgiving week through the 
third Saturday after Thanksgiving Day in 
all of Avery, Buncombe, Burke, Caldwell, 
Cherokee, Clay, Cleveland, Graham, 
Haywood, Henderson, Jackson, Macon, 
Madison, McDowell, Mitchell, Polk, Ruth- 
erford, Swain, Transylvania, and Yancey 
counties. 

(D) Monday before Thanksgiving week through 
January 1 in all of Alamance, Anson, 
Cabarrus, Caswell, Chatham, Davidson, 
Durham, Granville, Guilford, Lee, 
Mecklenburg, Montgomery, Orange, Per- 
son, Randolph, Rockingham, Rowan, 
Stanly, and Union counties, and in the 
following parts of counties: 
Cumberland, That part north of NC 24 and 
west of 1-95; 

Harnett, That part east of NC 87; 
Moore, That part north of NC 211 and 
west of US 1; 

(E) Monday on or nearest September 10 
through January 1 in those parts of Cam- 
den, Gates and Pasquotank counties known 
as the Dismal Swamp National Wildlife 
Refiige, in those parts of Hyde, Tyrrell and 
Washington counties known as the Pocosin 
Lakes National Wildlife Refuge, and in that 
part of Currituck County known as the 
Mackay Island National Wildlife Refuge. 

(2) Deer of Either Sex. Except on Game Lands, deer 
of either sex may be taken during the open sea- 
sons and in the counties and portions of counties 
listed in this Subparagraph (See I0D.0003 for 
either sex seasons on Game Lands): 
(A) The open either-sex deer hunting dates 
established by the U.S. Fish and Wildlife 
Service during the period from the Monday 
on or nearest September 10 through Janu- 
ary 1 in those parts of Camden, Gates and 
Pasquotank counties known as the Dismal 



Swamp National Wildlife Refuge, in those 
parts of Hyde, Tyrrell and Washington 
counties known as the Pocosin Lakes Na- 
tional Wildlife Refuge, and in that part of 
Currituck County known as the Mackay 
Island National Wildlife Refuge and from 
the first Saturday in October through Janu- 
ary 1 and those parts of Anson and Rich- 
mond counties known as Pee Dee National 
Wildlife Refuge. 

(B) The open either-sex deer hunting dates 
established by the appropriate military 
commands during the period from Monday 
on or nearest October 15 through January 
1 in that part of Brunswick County known 
as the Sunny Point Military Ocean Termi- 
nal, in that part of Craven County known 
and marked as Cherry Point Marine Base, 
in that part of Onslow County known and 
marked as the Camp Lejeune Marine Base, 
on Fort Bragg Mihtary Reservation, and on 
Camp Mackall Military Reservation. 

(C) Second Saturday in October for youth 
either sex deer hunting by permit only on 
a portion of Belews Creek Steam Station in 
Stokes County designated by agents of the 
Commission. 

(D) The second Saturday in December in all of 
Buncombe, Haywood, Henderson, Madi- 
son, Mitchell, Transylvania, and Yancey 
counties and the following parts of coun- 
ties: 

Avery: That part south of the Blue Ridge 
Parkway. 

(E) Wednesday through Saturday of the week 
following Thanksgiving in all of Harnett, 
Hoke, Mecklenburg, and Tyrrell counties 
and in the following parts of counties: 
Camden: That part south of US-158. 
Cumberland: That part west of 1-95. 
Dare: except the Outer Banks north of 
Whalebone. 

Richmond: That part east of a line formed 
by US 220 from the Montgomery County 
line to Rockingham and US 1 from Rock- 
ingham to the South Carolina line. 
Scotland: That part north of US 74. 
Wayne: That part north of US 70. 

(F) Wednesday of the week following Thanks- 
giving through Saturday of next succeeding 
week in all of Alamance, Cabarrus, 
Carteret, Caswell, Davidson, Durham, 
Greene, Guilford, Lee, Moore, Orange, 
Pamlico, Pasquotank, Person, Randolph, 
Rockingham, Rowan, Stanly, Union, 
Wake, Washington, and Wilson counties 
and in the following parts of counties: 



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PROPOSED RULES 



Camden: That part north of US-158 
Chowan: That part north of US 17 and 
west of NC 32. 

Columbus: That part west of US 74, SR 
1005, and SR 1125. 
Cumberland: That part east of 1-95. 
Currituck: All of the county except the 
Outer Banks. 

Johnston: That part north of US 70 or 
west of 1-95. 

Nash: That part south of US 64. 
Richmond: That part east of Little River 
and west of a line formed by US 220 from 
the Montgomery County line to Rocking- 
ham and US 1 from Rockingham to the 
South Carolina line. 
Robeson: That part east of 1-95. 
Wayne: That part south of US 70. 

(G) Monday of Thanksgiving week through the 
third Saturday after Thanksgiving Day in 
that part of Buncombe County east of NC 
191, south of the French Broad and 
Swannanoa Rivers, west of US 25. and 
north of SR 3503, NC 146 and SR 3501. 

(H) Wednesday of the week following Thanks- 
giving through January 1 in all of Anson, 
Beaufort, Bertie, Bladen, Brunswick, Chat- 
ham, Craven, Duplin, Edgecombe, Frank- 
lin, Gates, Granville, Halifax, Hertford, 
Hyde, Jones, Lenoir, Martin, Montgomery, 
Northampton, Onslow, Pender, 

Perquimans, Pitt, Sampson, Vance, and 
Warren counties, and in the following parts 
of counties: 

Chowan: That part south of US 17 or east 
of NC 32. 

Columbus: That part east of a line formed 
by US 74, SR 1005, and SR 1125. 
Dare' That part of the Outer Banks north 
of Whalebone. 

Johnston: That part south of US 70 and 
east of 1-95. 

Nash: That part north of US 64. 
New Hanover: That part north of US 74. 
Richmond: That part west of Little River. 
(I) The second Wednesday after TTianksgiving 
through the third Saturday after Thanksgiv- 
ing in all of Alexander, Alleghany. Ashe, 
Cleveland, Davie, Forsyth, Iredell, Ruther- 
ford, Stokes, Surry, Wilkes and Yadkin 
counties. 

(J) The third Friday after Thanksgiving 
through the third Saturday after Thanksgiv- 
ing in all of, Burke, Caldwell, Catawba, 
Gaston, Lincoln, McDowell, Polk, and 
Watauga, counties. 

(K) In those counties or parts of counties listed 



in Paragraph (b) (2) (H), two antierless 
deer may be taken during that part of the 
regular gun season in which no other either 
sex season is open and shall be tagged with 
the Antierless deer tag or the Bonus 
Antierless deer tag. 
(L) In those counties or parts of counties listed 
in Part (b)(2)(F), one antierless deer may 
be taken during that part of the regular gun 
season in which no other either-sex season 
is open and shall be tagged with the 
Antierless deer tag. 
(M) In Alexander, Alleghany, Ashe, Davie. 
Forsyth, Iredell, Stokes, Surry, Wilkes, 
and Yadkin counties, one antierless deer 
may be taken during that part of the regular 
gun season or that part of the muzzle-load- 
ing season in which no other either-sex 
season is ojDen and shall be tagged with the 
Antierless deer tag. 
(c) Open Seasons (Bow and Arrow) 

(1) Authorization. Subject to the restrictions set out 
in Subparagraph (2) of this Paragraph and the bag 
limits set out in Paragraph (e) of this Rule, deer 
of either sex may be taken with bow and arrow 
during the following seasons: 

(A) Monday on or nearest September 10 to the 
fourth Saturday thereafter in the counties 
and parts of counties having the open sea- 
son for male deer specified by Part (A) of 
Subparagraph (b)(1) of this Rule, except on 
the Sandhills Game Land and the area 
known as the Outer Banks in Currituck 
County. 

(B) Monday on or nearest September 10 to the 
second Saturday before Thanksgiving in the 
counties and parts of counties having the 
open seasons for male deer specified by 
Part (B) of Subparagraph (b)(1) of this 
Rule. 

(C) Monday on or nearest September 10 to the 
fourth Saturday thereafter, and Monday on 
or nearest October 15 to the Saturday 
before Thanksgiving in the counties and 
parts of counties having the open seasons 
for male deer specified by Part (C) of 
Subparagraph (b)(1) of this Rule. 

(D) Monday on or nearest September 10 to the 
third Saturday before Thanksgiving in the 
counties and parts of counties having the 
open season for male deer specified by Part 
(D) of Subparagraph (b)(1) of this Rule, 
and on Sandhills Game Land. 

(2) Restrictions 

(A) Dogs may not be used for hunting deer 
during the bow and arrow season. 

(B) It is unlawful to carry any type of firearm 



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501 



PROPOSED RULES 



while hunting with a bow during the bow 
and arrow deer hunting season. 
(C) Only bows and arrows of the types autho- 
rized in 15A NCAC lOB .0116 for taking 
deer may be used during the bow and 
arrow deer hunting season. 
(d) Open Seasons (Muzzle-Lxiading Rifles and Shotguns) 

(1) Authorization. Subject to the restrictions set out 
in Subparagraph (2) of this Paragraph, deer may 
be taken only with muzzle-loading firearms 
(except that bow and arrow may be used on 
designated and posted game land Archery Zones) 
during the following seasons: 

(A) Monday on or nearest October 8 to the 
following Saturday in the counties and parts 
of counties having the open seasons for 
male deer specified by Items (A) and (C) 
of Subparagraph (b)(\) of this Rule, except 
on Sandhills Game Land and the area 
known as the Outer Banks in Currituck 
County. 

(B) Monday to Saturday of the week preceding 
Thanksgiving week in the counties and 
parts of counties having the open seasons 
for male deer specified by Item (B) of 
Subparagraph (b)(1) of this Rule. 

(C) Monday to Saturday of the second week 
before Thanksgiving week in the counties 
and parts of counties having the open sea- 
son for male deer specified by Part (D) of 
Subparagraph (b)(1) of this Rule, and on 
Sandhills Game Land. 

(2) Restrictions 

(A) Deer of either sex may be taken during 
muzzle-loading firearms season in and east 
of the following counties: Rutherford, 
McDowell, Burke, Caldwell, Wilkes, and 
Ashe. Deer thoo e oounti e o or parts of 
counti e s list e d in Parts (A) and (D) of 
Subparagraph (b)(1) of thi s Rule and doer 
of either sex may be taken on the last day 
of muzzle-loading firearms season in all 
other counties, thos e counti es or part s of 
oount i os liatod in Part (B) and (C) of Sub 
paragraph (b) ( 1 ) of thi s Rule. 

(B) Dogs may not be used for hunting deer 
during the muzzle-loading firearms seasons. 

(C) Pistols may not be carried while hunting 
deer during the muzzle-loading firearms 
seasons. 

(e) Except m areas described in Part (b)( 1 )( A) of this 
Rule, the The daily bag limit shall be two and the posses- 
sion limit five, three ese of which shall be antlerless. The 
season limit shall be five, three efus of which shall be 
antlerless. In areas described in Part (b)(1)(A) of this Rule, 
the daily bag limit shall be two and the possession limit 
five, one of which shall be antlerless. The season limit in 



these areas shall be five, one of which shall be antlerless. 
In those areas listed in Part (b)(2)(H) of this Rule, except on 
Game Lands, one additional antlerless deer may be taken 
provided it is tagged with the Bonus Antlerless deer tag. 
Antlerless deer include males with knobs or buttons covered 
by skin or velvet as distinguished from spikes protruding 
through the skin. The antlerless bag limits described above 
do not apply to antlerless deer harvested in areas covered in 
the Deer Management Assistance Program as described in 
G.S. 1 13-291. 2(e). Individual daily antlerless bag limits on 
these areas shall be determined by the number of special 
tags, issued by the Division of Wildlife Management as 
authorized by the Executive Director, that shall be in the 
possession of the hunter. Season antlerless bag limits shall 
be set by the number of tags available. All antlerless deer 
harvested on these areas, regardless of the date of harvest, 
shall be tagged with these special tags but do not have to be 
tagged with Big Game Tags provided with the hunting 
license. 

(f) Kill Reports. The carcass of each deer shall be 
tagged and the kill reported as provided by ISA NCAC lOB 
.0113. 

Authority G.S. 113-134; 113-270.3; 113-276.1; 113-291.1; 
113-291.2. 

.0208 QUAEL 

(a) The open season for quail shall be the Saturday next 
preceding Thanksgiving through te the 15th last day of 
February. 

(b) The daily bag Limit shall be eight per day and the 
possession limit shall be 16 per day. There shall be no 
season limit. 

Authority G.S. 113-134; 113-291.2. 

.0209 WILD TURKEY (BEARDED TURKEYS 
ONLY) 

(a) Open Season shall be from the: Second Saturday in 
April to Saturday of the fourth week thereafter on bearded 
turkeys in the following counties: Alexander, Alleghany, 
Ashe, Avery, Buncombe, Burke, Caldwell, Caswell, 
Catawba, Cherokee, Clay, Davie, Forsyth, Gates, Graham, 
Harnett, Haywood, Henderson, Hertford, Jackson, Macon, 
Madison, McDowell, Mitchell, Montgomery, Onslow, 
Orange, Person, Polk, **Richmond, Rockingham, Ruther- 
ford, **Scotland, Stokes, Surry, Swain, Transylvania, 
Watauga, Wilkes, Yadkin, Yancey and in the following 
portions of counties: 

Alamance: All of the county except that part 

south of 1-85 and west of NC 87. 

Anson: That part east of US 52 and north of US 

74 and that part east of NC 145 and south of US 

74. 

Av e r>': — That part west of US 19E. 

^''^Bertie: That part west of a line formed by NC 

45 from the Hertford County line to Colerain, NC 



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PROPOSED RULES 



42 to Powellsville. US 13 to US 17 South. US 17 

South to SR 1500, SR 1500 to NC 308, and NC 

308 to the Washington County line. 

**Bladen: AH of the county except that part east 

of NC 53 and north of US 701 and that part west 

of NC 87 and SR 1730. That part south of US 

701 and e aot of NC 87 or SR 1730. 

Brunswick: Tliat part north of US 74-76 or east 

of NC 133. 

Burko: That part north of I AO and w e ot of NC 

18 and NC 181. 

Carteret: That part west of US 70 and north of 

NC 24. 

Chatham: That part north of US 64 and west of 

SR 1008. 

Chowan: That part south of US-1 7. 

Cleveland: That part west of NC 18. 

Columbus: That part north of NC 87. 

Craven: That part east of US 17, south of the 

Neuse River and west of Clubfoot Creek and the 

Harlowe Canal; and that part north of the Neuse 

River, south of a line formed by US 17 and US 

17 Business, and east of a line formed by SR 

1440 and SR 1441. 

Cumberland: That part west of NC 53 or 1-95. 

Davidson: That part south of 1-85 

Durham: That part west of US 501. 

Granville: All of the county except that part west 

of a line formed by SR 1126 from the county line 

to the intersection of SR 1004 then west on SR 

1004 to the intersection of SR 1112 then east on 

SR 1 112 to NC 56 then east on NC 56 to 1-85 

then south on 1-85 to the county line. 

**Halifax: Startmg at the Northampton County 

Line, that part east and north of a line formed by 

1-95, NC 903 and US 301. 

Hoke: That part south and west of NC 211. 

Hyde: Starting at the Tyrrell County line, that 

part west of a line formed by NC 94, US 264 

West, SR 1124 to Judges Quarter then Quarter 

Canal to Juniper Bay. 

Iredell: That part north of US 70. 

Johnston: That part south of US 70 and 1-95 and 

east of US 701. 

Jones: Starting at the Craven County line, that 

part south of a line formed by US-17, SR 1002, 

and SR 1306. 

**Martin: That part north of a boundary formed 

by US 64 from the Washington County line to 

Williamston, north of NC 125 from Williamston 

to the junction with NC 142, and north of NC 142 

to the Edgecombe County line. 

**Moore: That part south of NC 211. 

New Hanover: Starting at the Brunswick County 

line, that part north and west of a line formed by 

NC-133 and SR 1002. 

Northampton: That part south of a boundary 



formed by US 158 from the Halifax County line 
to Jackson, NC 305 from Jackson to Rich Square, 
US 258 from Rich Square to NC 308, and NC 
308 to the Bertie County line and that part south 
of NC 186, east of SR 1341, and north of SR 
1333 and SR 1351. 

**Pender: Starting at the Sampson County line, 
that part south and west of a line formed by US 
421, NC 210, and US-17 South; and starting at 
the Onslow county line, that part south of NC 53, 
east of the Northeast Cape Fear River, and north 
of the northern boundary of Holly Shelter Game 
Land and US 17. 

Perquimans: Starting at the Pasquotank County 
line, that part south of a line formed by US-17, 
US-17 Business, and SR 1110. 
Rowan: That part east of US 52. 
Union: That part south of NC 74 and west of NC 
207. 

Wayne: That part south of US-70 and east of 
US-1 17. 

Yancey: All of th e county e xcept that part north 
of US 19E and e ast of NC 197. 
**The Sandhills Game Land in Richmond, Scot- 
land, and Moore Counties, the Bladen Lakes State 
Forest Game Lands in Bladen County, the North- 
east Cape Fear Wetlands Game Lands in Pender 
County, and the Roanoke River Wetlands in 
Bertie, Halifax, and Martin Counties are closed to 
turkey hunting except by holders of special per- 
mits authorizing turkey hunting as provided in 
G.S. 113-264(d). 

(b) Bag Limits shall be: 

(1) daily, one; 

(2) possession, two; 

(3) season, two. 

(c) Dogs Prohibited. It is unlawful to use dogs for 
hunting turkeys. 

(d) Kill Reports. The carcass of each wild turkey shall 
be tagged and the kill reported as provided by 15 A NCAC 
lOB .0113. 

Authority G.S. 113-134; 113-270.3; 113-276.1; 113-291.2. 

SUBCHAPTER lOD - GAME LANDS 
REGULATIONS 

.0002 GENERAL REGULATIONS REGARDING 
USE 

(a) Trespass. Entry on game lands for purposes other 
than hunting, trapping or fishing shall be as authorized by 
the landowner and there shall be no removal of any plants 
or parts thereof, or other materials, without the written 
authorization of the landowner. Travel is restricted, except 
by authorized personnel, to direct access from SR 2074 to 
the established waterfowl viewing stands on Cowan's Ford 
Waterfowl Refuge. The Wildlife Resources Commission 



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503 



PROPOSED RULES 



may designate areas on game lands as either an Archery 
Zone, Safety Zone or Restricted Zone. On Commission- 
owed game lands, entry for any recreational use requires a 
Game Land License. 

(1) Archery Zone. On portions of game lands 
posted as "Archery Zones" hunting is limited 
to bow and arrow hunting only. 

(2) Safety Zone. On portions of game lands 
posted as "Safety Zones" hunting is prohib- 
ited. No person shall hunt or discharge a 
firearm or bow and arrow within, into, or 
across a posted safety zone on any game 
land. 

(3) Restricted Zone. Portions of game lands 
posted as "Restricted Zones" are closed to all 
use by the general public, and entry upon 
such an area for any purpose is prohibited 
without first having obtained specific written 
approval of such entry or use from an autho- 
rized agent of the Wildlife Resources Com- 
mission. 

(4) Establishment of Archery and Restricted 
Zones. The Commission shall conduct a 
public input meeting in the area where the 
game land is located before establishing any 
archery or restricted zone. After the input 
meeting the public comments shall be pre- 
sented to an official Commission meeting for 
final determination. 

(b) Littering. No person shall deposit any litter, trash, 
garbage, or other refuse at any place on any game land 
except in receptacles provided for disposal of such refuse at 
designated camping and target-shooting areas. No garbage 
dumps or sanitary landfills shall be established on any game 
land by any person, firm, corporation, county or municipal- 
ity, except as permitted by the landowner. 

(c) Possession of Hunting Devices. It is unlawful to 
possess a firearm or bow and arrow on a game land at any 
time except during the open hunting seasons or hunting days 
for game birds or game animals, other than fox, thereon 
unless said device is cased or not immediately available for 
use, provided that such devices may be possessed and used 
by persons participating in field trials on field trial areas and 
on target shooting areas designated by the landowner, and 
possessed in designated camping areas for defense of 
persons and property; and provided further that .22 caliber 
pistols with barrels not greater than seven and one-half 
inches in length and shooting only short, long, or long rifle 
ammunition may be carried as side arms on game lands at 
any time other than by hunters during the special bow and 
arrow and muzzle-loading firearms deer hunting seasons and 
by individuals training dogs during closed season without 
field trial authorization. This Rule shall not prevent 
possession or use of a bow and arrow as a licensed special 
fishing device in those waters where such use is authorized. 
During the closed firearms seasons on big game (deer, bear, 
boar, wild turkey), no person shall possess a shotgun shell 



containing larger than No. 4 shot or any rifle or pistol 
larger than a .22 caliber rimfire while on a game land, 
except that shotgun shells containing any size steel or 
non-toxic shot may be used while waterfowl hunting. 
Furthermore, only shotguns with any size shot may be 
possessed during the big game season for turkey. No 
person shall hunt with or have in possession any shotgun 
shell containing lead or toxic shot while hunting on any 
posted waterfowl impoundment on any game land, or while 
hunting waterfowl on Butner-Falls of Neuse Game Land or 
New Hope Game Land, except shotgun shells containing 
lead buckshot may be used while deer hunting, 
(d) Game Lands License 

(1) Hunting and Trapping 

(A) Requirement. Except as provided in 
Part (B) of this Subparagraph, any 
person entering upon any game land 
for the purpose of hunting, trapping, 
or participating in dog training or field 
trial activities shall have in his posses- 
sion a game lands license in addition to 
the appropriate hunting or trapping 
licenses. 

(B) Exceptions 

(i) A person under 16 years of age may 
hunt on game lands on the license of 
his parent or legal guardian, 
(ii) The resident and nonresident sports- 
man's licenses include game lands 
use privileges, 
(iii) Judges and nonresidents participating 
in field trials under the circum- 
stances set forth in Subsection (e) of 
this Rule may do so without the 
game lands license, 
(iv) On the game lands described in Rule 
.0003(e)(2) of this Subchapter the 
game lands license is required only 
for hunting doves; all other activities 
are subject to the control of the land- 
owners. 
(2) Trout Fishing. Any person 16 years of age or 
over, including an individual fishing with natural 
bait in the county of his residence, entering a 
game land for the purpose of fishing in designated 
pubUc mountain trout waters located thereon shall 
have in his possession a game lands license in 
addition to the regular fishing license and special 
trout license. TTie game lands license is not 
required to fish in that part of Slick Rock Creek 
which coincides with the Tennessee State line, or 
when fishing from boat on Calderwood Lake. 
The resident and nonresident sportsman's licenses 
and short-term comprehensive fishing licenses 
include trout fishing privileges on game lands, 
(e) Field Trials and Training Dogs. A person serving as 
judge of a field trial which, pursuant to a written request 



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PROPOSED RULES 



from the sponsoring organization, has been officially 
authorized in writing and scheduled for occurrence on a 
game land by an authorized representative of the Wildlife 
Resources Commission, and any nonresident participating 
therein may do so without procuring a game lands license, 
provided such nonresident has in his possession a valid 
hunting license issued by the state of his residence. Any 
individual or organization sponsoring a field trial on the 
Sandhills Field Trial grounds or the Laurinburg Fox Trial 
facility shall file with the commission's agent an application 
to use the area and facility accompanied by the facility use 
fee computed at the rate of one hundred dollars ($100.00) 
for each scheduled day of the trial. The total facility use 
fee shall cover the period from 12:00 noon of the day 
preceding the first scheduled day of the trial to 10:00 a.m. 
of the day following the last scheduled day of the trial. The 
facility use fee shall be paid for all intermediate days on 
which for any reason trials are not run but the building or 
facilities are used or occupied. A fee of twenty-five dollars 
($25.00) per day shall be charged to sporting, educational, 
or scouting groups for scheduled events utilizing the club 
house only. No person or group of persons or any other 
entity shall enter or use in any maimer any of the physical 
facilities located on the Laurinburg Fox Trial or the 
Sandhills Field Trial grounds without first having obtained 
specific written approval of such entry or use from an 
authorized agent of the Wildlife Resources Commission, and 
no such entry or use of any such facility shall exceed the 
scope of or continue beyond the specific approval so 
obtained. The Sandhills Field Trial facilities shall be used 
only for field trials scheduled with the approval of the 
Wildhfe Resources Commission. No more than 16 days of 
field trials may be scheduled for occurrence on the Sandhills 
facilities during any calendar month, and no more than four 
days may be scheduled during any calendar week; provided, 
that a field trial requiring more than four days may be 
scheduled during one week upon reduction of the maximum 
number of days allowable during some other week so that 
the monthly maximum of 16 days is not exceeded. Before 
October 1 of each year, the North Carolina Field Trial 
Association or other organization desiring use of the 
Sandhills facilities between October 22 and November 18 
and between December 3 and March 31 shall submit its 
proposed schedule of such use to the Wildlife Resources 
Commission for its consideration and approval. The use of 
the Sandhills Field Trial facilities at any time by individuals 
for training dogs is prohibited; elsewhere on the Sandhills 
Game Lands dogs may be trained only on Mondays, 
Wednesdays and Saturdays from October 1 through April 1. 
Dogs may not be trained or permitted to run unleashed from 
April 1 through August 15 on any game land located west 
of 1-95, except when participating in field trials sanctioned 
by the Wildlife Resources Commission. Additionally, on 
game lands located west of 1-95 where special hunts are 
scheduled for sportsmen participating in the Disabled 
Sportsman Program, dogs may not be trained or allowed to 
run unleashed during legal big game hunting hours on the 



dates of the special hunts. 

(f) Trapping. Subject to the restrictions contained in 15 A 
NCAC lOB .0110, .0302 and .0303, trapping of furbearing 
animals is permitted on game lands during the applicable 
open seasons, except that trapping is prohibited: 

(1) on the field trial course of the Sandhills Game 
Land; 

(2) on the Harmon Den and Sherwood bear sanctuar- 
ies in Haywood County; 

(3) in posted "safety zones" located on any game 
land; 

(4) by the use of multiple sets (with anchors less than 
15 feet apart) or bait on the National Forest Lands 
bounded by the Blue Ridge Parkway on the south, 
US 276 on the north and east, and NC 215 on the 
west; 

(5) on Cowan's Ford Waterfowl Refuge In Gaston, 
Lincoln and Mecklenburg Counties; 

(6) on the Hunting Creek Swamp Waterfowl Refuge. 
On those areas of state-owned land known collectively as 
the Roanoke River Wetlands controlled trapping is allowed 
under a permit system. 

(g) Use of Weapons. No person shall hunt or discharge 
a firearm or bow and arrow from a vehicle, or within 200 
yards of any building or designated camping area, or within, 
into, or across a posted "safety zone" on any game land. 
No person shall hunt with or discharge a firearm within, 
into, or across a posted "restricted zone" on any game land. 

(h) Vehicular Traffic. No person shall drive a motorized 
vehicle on any game land except on those roads constructed, 
maintained and opened for vehicular travel and those trails 
posted for vehicular travel, unless such person: 

(1) is a participant in scheduled bird dog field trials 
held on the Sandhills Game Land; or 

(2) holds a Disabled Access Program Permit as 
described in (n) below and is abiding by the rules 
described in that paragraph. 

(i) Camping. No person shall camp on any game land 
except on an area designated by the landowner for camping. 

(j) Swimming. Swimming is prohibited in the lakes 
located on the Sandhills Game Land. 

(k) Disabled Sportsman Program. In order to qualify for 
special hunts for disabled sportsmen listed in 15A NCAC 
lOD .0003 an individual shall have in their possession a 
Disabled Sportsman permit issued by the Commission. In 
order to qualify for the permit, the applicant shall provide 
medical certification of one or more of the following 
disabilities: 

(1) amputation of one or more limbs; 

(2) paralysis of one or more limbs; 

(3) dysfunction of one or more limbs rendering the 
person unable to perform the task of grasping and 
lifting with the hands and arms or unable to walk 
without mechanical assistance, other than a cane; 

(4) disease or injury or defect confining the person to 
a wheelchair, walker, or crutches; or 

(5) legal deafness, meaning the inability to hear 



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505 



PROPOSED RULES 



and/or understand oral communications with or 
without assistance of amplification devices. 
Participants in the program, except those qualifying by 
deafness, may operate vehicles on ungated or open-gated 
roads normally closed to vehicular traffic on Game Lands 
owned by the Wildlife Resources Commission. Each 
program participant may be accompanied by one able-bodied 
companion provided such companion has in his possession 
the companion permit issued with the Disabled Sportsman 
permit. 

(1) Release of Animals. It is unlawful to release pen- 
raised animals or birds, or wild animals or birds on game 
lands without prior written authorization. 

(m) Non-Highway Licensed Vehicles. It is unlawful to 
operate motorized vehicles not licensed for highway use 
from May 15 through August 15 on all state-owned Game 
Lands. Such vehicles may be operated August 16 through 
May 14 only on those roads constructed, maintained, and 
open for vehicular travel and those trails posted for vehicu- 
lar use. All operators of such vehicles shall have, in their 
possession, a valid Game Lands Use license. 

(n) Disabled Access Program. Permits issued under this 
program shall be based upon competent medical evidence 
submitted by the person verifying that a handicap exists that 
limits physical mobility to the extent that normal utilization 
of the game lands is not possible without vehicular assis- 
tance. Persons meeting this requirement may operate 
electric wheel chairs, all terrain vehicles, and other passen- 
ger vehicles on ungated or open-gated roads otherwise 
closed to vehicular traffic on game lands owned by the 
Wildlife Resources Commission and on game lands whose 
owners have agreed to such use. Those game lands where 
this special rule applies shall be designated in the game land 
rules and map book. TTiis special access rule for disabled 
sportsmen does not permit vehicular access on fields, 
openings, roads, paths, or trails planted to wildlife food or 
cover. One able-bodied companion, who is identified by a 
special card issued to each qualified disabled person, may 
accompany a disabled person to provide assistance, provided 
the companion is at all times in visual or verbal contact with 
the disabled person. The companion may participate in all 
lawful activities while assisting a disabled person, provided 
license requirements are met. Any vehicle used by a 
qualified disabled person for access to game lands under this 
provision shall prominently display the vehicular access 
permit issued by the Wildlife Resources Commission in the 
passenger area of the vehicle. It shall be unlawful for 
anyone other than those holding a Disabled Access Permit 
to hunt, during waterfowl season, within 100 yards of a 
waterfowl blind designated by the Wildlife Resources 
Commission as a Disabled Sportsman's hunting blind. 

Aialwriry G.S. 113-134; 113-264; 113-270.3; 113-291.2; 
113-291.5; 113-305; 113-306. 

,0003 HUNTING ON GAME LANDS 

(a) Safety Requirements. No person while hunting on 



any designated game land shall be imder the influence of 
alcohol or any narcotic drug, or fail to comply with special 
restrictions enacted by the National Park Service regarding 
the use of the Blue Ridge Parkway where it adjoins game 
lands listed in this Rule. 

(b) Traffic Requirements. No person shall park a vehicle 
on game lands in such a manner as to block traffic, gates or 
otherwise prevent vehicles from using any roadway. 

(c) Tree Stands. It is unlawfiil to erect or to occupy, for 
the purpose of hunting, any tree stand or platform attached 
by nails, screws, bolts or wire to a tree on any game land 
designated herein. This prohibition shall not apply to 
lag-screw steps or portable stands that are removed after use 
with no metal left remaining in or attached to the tree. 

(d) Time and Manner of Taking. Except where closed 
to hunting or limited to specific dates by this Chapter, 
hunting on game lands is permitted during the open season 
for the game or furbearing species being hunted. On 
managed waterfowl impoundments, hunters shall not enter 
the posted impoundment areas earlier than 4:00 a.m. on the 
permitted hunting dates, and hunting is prohibited after 1:00 
p.m. on such hunting dates; decoys may not be set out prior 
to 4:00 a.m. and must be removed by 3:00 p.m. each day. 
No person shall operate any vessel or vehicle powered by an 
internal combustion engine on a managed waterfowl im- 
poundment. No person shall attempt to obscure the sex or 
age of any bird or animal taken by severing the head or any 
other part thereof, or possess any bird or animal which has 
been so mutilated. No person shall place, or cause to be 
placed on any game land, salt, grain, fruit, or other foods 
without prior written authorization of the commission or its 
agent. A decision to grant or deny authorization shall be 
made based on the best management practices for the 
wildlife species in question. No person shall take or attempt 
to take any game birds or game animals attracted to such 
foods. No live wild animals or wild birds shall be removed 
from any game land. 

(e) Definitions: 

(1) For purposes of this Section "Eastern" season 
refers to seasons set for those counties or parts of 
counties Usted in ISA NCAC lOB .0203(b)(1)(A); 
"Central" season refers to seasons set for those 
counties or parts of counties listed in 15A NCAC 
lOB .0203(b)(1)(D); "Northwestern" season refers 
to seasons set for those counties or parts of 
counties listed in 15A NCAC lOB .0203(1))(1)(B); 
"Western" season refers to seasons set for those 
counties or parts of counties listed in 15A NCAC 
lOB .0203(b)(1)(C). 

(2) For purposes of this Section, "Dove Only Area" 
refers to a Game Land on which doves may be 
taken and dove hunting is limited to Mondays, 
Wednesdays, Saturdays and to Thanksgiving, 
Christmas and New Year's Days within the 
federally-announced season. 

(3) For purposes of this Section, "Three Days per 
Week Area" refers to a Game Land on which any 



506 



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July 15, 1996 



11:8 



PROPOSED RULES 



game may be taken during the open seasons and 
hunting is limited to Mondays, Wednesdays, 
Saturdays and Thanksgiving, Christmas and New 
Year's Days. These open days also apply to 
either-sex hunting seasons listed under each game 
land. Raccoon and opossum hunting may con- 
tinue until 7:00 a.m. on Tuesdays, until 7:00 a.m. 
on Thursdays, and until midnight on Saturdays. 
(4) For purposes of this Section, "Six Days per Week 
Area" refers to a Game Land on which Any game 
may be taken on the following game lands during 
the open season, except that: 

(A) Bears may not be taken on lands designated 
and posted as bear sanctuaries; 

(B) Wild boar may not be taken with the use of 
dogs on such bear sanctuaries, and wild 
boar may be hunted only during the bow 
and arrow seasons, the muzzle-loading deer 
season and the regular gun season on male 
deer on bear sanctuaries; 

(C) On game lands open to deer hunting lo- 
cated in or west of the counties of Rocking- 
ham, Guilford, Randolph, Montgomery and 
Anson, the following rules apply to the use 
of dogs during the regular season for hunt- 
ing deer with guns: 

(i) Except for the counties of Cherokee, 
Clay, Graham, Jackson, Macon, 
Madison, Polk, and Swain, game 
birds may be hunted with dogs, 
(ii) In the counties of Cherokee, Clay, 
Graham, Jackson, Macon. Madison, 
Polk, and Swain, small game in 
season may be hunted with dogs on 
all game lands except on bear sanc- 
tuaries. 

(D) On bear sanctuaries in and west of Madi- 
son, Buncombe, Henderson and Polk coun- 
ties dogs may not be trained or allowed to 
run unleashed between March 1 and the 
Monday on or nearest October 15; 

(f) Game Lands Seasons and Other Restrictions: 

(1) Alcoa Game Land in Davidson, Davie, Montgom- 
ery, Rowan and Stanly counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
first Wednesday after Thanksgiving through 
the third Saturday after TTianksgiving ex- 
cept that part in Davie County where the 
season is the second Wednesday after 
Thanksgiving through the third Saturday 
after Thanksgiving. 

(2) Angola Bay Game Land in Duplin and Pender 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 



giving through January 1. 

(3) Anson Game Land in Anson County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(4) Bachlelor Bay Game Land in Bertie and Washing- 
ton counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(5) Bertie County Game Land in Bertie County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through January 1 . 

(6) Bladen County Game Land in Bladen County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through January 1. 

(7) Bladen Lakes State Forest Game Land in Bladen 
County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. Deer of either sex may 
also be taken the Saturday preceding East- 
em bow season with bow and arrow and 
the Friday preceding the Eastern muzzle- 
loading season with any legal weapon (with 
weapons exceptions described in this Para- 
graph) by participants in the Disabled 
Sportsman Program. 

(C) Handguns may not be carried and, except 
for muzzle-loaders, rifles larger than .22 
caliber nmfire may not be used or pos- 
sessed. 

(D) On the Breece Tract and the Singletary 
Tract deer and bear may be taken only by 
still hunting. 

(E) Wild turkey hunting is by permit only. 

(8) Brushy Mountains Game Land in Caldwell 
County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
third Friday after Thanksgiving through the 
third Saturday after Thanksgiving. 

(9) BuUard and Branch Hunting Preserve Game 
Lands in Robeson County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 



NORTH CAROLINA REGISTER 



July 15, 1996 



507 



PROPOSED RULES 



(10) 



giving through the Saturday of the next 

succeeding week. 
Butner - Falls of Neuse Game Land in Durham, 
Granville and Wake counties 



(A) 
(B) 



(C) 



(D) 



(E) 



Six Days per Week Area 
Deer of either sex may be taken from the 
first Wednesday after Thanksgiving through 
the following Saturday. 
Waterfowl may be taken only on Tuesdays, 
Thursdays and Saturdays, Christmas and 
New Year's Days, and on the opening and 
closing days of the applicable waterfowl 
seasons. On the posted waterfowl im- 
poundments a special permit is required for 
all waterfowl hunting. 
Horseback riding, including all equine 
species, is prohibited. 
Target shooting is prohibited. 



(11) Carson Woods Game Land in Ashe County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken from the 
second Wednesday after Thanksgiving 
through the third Saturday after TTianksgiv- 
ing. 

(12) Caswell Game Land in Caswell County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. Deer of either sex may 
also be taken the Friday preceding the 
Central muzzle-loading season by partici- 
pants in the Disabled Sportsman Program. 

(C) Horseback riding is allowed only during 
June, July, and August and on Sundays 
during the remainder of the year except 
during open turkey and deer seasons. 
Horseback riding is allowed only on roads 
opened to vehicular traffic. Participants 
must obtain a game lands license prior to 
engaging in such activity. 

(13) Caswell Farm Game Land in Lenoir County 
(A) Dove-Only Area 

(14) Catawba Game Land in Catawba and Iredell 
counties 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken from the 
second Wednesday after Thanksgiving 
through the third Saturday after Thanksgiv- 
ing in that portion in Iredell County and the 
third Friday after Thanksgiving through the 
third Saturday after Thanksgiving in that 
portion in Catawba County. 

(C) No deer may be taken from the tract 
known as Island Point and deer may be 
taken with bow and arrow only from the 
tract known as Molly's Backbone. 



(15) Chatham Game Land in Chatham County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(16) Cherokee Game Land in Ashe County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
second Wednesday after Thanksgiving 
through the third Saturday after Thanksgiv- 
ing. 

(17) Cherry Farm Game Land in Wayne County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(C) The use of centerfire rifles and handguns is 
prohibited. 

(18) Chowan Game Land in Chowan County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(19) Chowan Swamp Game Land in Gates County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Tlianks- 
giving through January 1. 

(20) Columbus County Game Land in Columbus 
County. 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through January L. 

(21) (30) Croatan Game Land in Carteret, Craven and 
Jones counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(C) Waterfowl may be taken only on Mondays, 
Wednesdays, Saturdays; on Thanksgiving, 
Christmas and New Year's Days; and on 
the opening and closing days of the applica- 
ble waterfowl seasons. 

(D) Bear season extends from the second Mon- 
day in November through the following 
Saturday in that portion in Jones and Cra- 
ven counties and runs with the county 
season in Carteret. 

(22) (34) Dare Game Land in Dare County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from 



508 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



(C) 



(D) 



Wednesday through Saturday of the week 

following Thanksgiving. 

No hunting on posted parts of bombing 



The use and training of dogs is prohibited 
from March 1 through June 30. 

(23) (33) Dysartsville Game Land in McDowell and 
Rutherford counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 

second Wednesday after Thanksgiving (28) 

through the third Saturday after Thanksgiv- 
ing in that portion in Rutherford County 
and from the third Friday after Thanksgiv- 
ing through the third Saturday after 
Thanksgiving in that portion in McDowell 
County. (29} 

(24) (33) Elk Knob Game Land in Ashe and Watauga 
counties 

(A) Six Days per Week Area (30) 

(B) Deer of either-sex may be taken the second 
Wednesday after TTianksgiving through the 
third Saturday after Thanksgiving in that 
portion in Ashe County and the third Fri- 
day after Thanksgiving through the third 
Saturday in that portion in Watauga 
County. 

(25) (34) Gardner-Webb Game Land in Cleveland 
County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
second Wednesday after TTianksgiving 

through the third Saturday after TTianksgiv- (31) 

ing. 

(26) (35) Goose Creek Game Land in Beaufort and 
Pamlico counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
fifst Wednesday of the week following 

after Thanksgiving through the following (32) 

Saturday. Saturday of the next succeeding 

week. 

(C) On posted waterfowl impoundments water- 
fowl may be taken only on Mondays, 
Wednesdays, Saturdays; on TTianksgiving, 
Christmas and New Year's Days; and on 
the opening and closing days of the applica- 
ble waterfowl seasons. After November 1, 
on the Pamlico Point, Campbell Creek, and 
Spring Creek impoundments, a special 
permit is required for hunting on opening 
and closing days of the duck seasons, 
Saturdays of the duck seasons, and on 
TTianksgiving and New Year's day. 

(27) (34) Green River Game Land in Henderson, Polk (33) 
and Rutherford counties 

(A) Six Days per Week Area 



(B) Deer of either sex may be taken from the 
second Wednesday after Thanksgiving 
through the third Saturday after Thanksgiv- 
ing in that portion in Rutherford County; 
and from the third Friday after Thanksgiv- 
ing through the third Saturday after 
Thanksgiving in that portion in Polk and 
Henderson counties. Count)'; and on tho 
second Saturday in December in that per 
tion in Hondoroon County. 

(3^ Green Swamp Game Land in Brunswick 

County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through January 1 . 

(3^ Guilford County Farm Game Land in 

Guilford County 

(A) Dove-Only Area 

(39) Gull Rock Game Land in Hyde County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(C) On the posted waterfowl impoundments of 
Gull Rock Game Land hunting of any 
species of wildlife is limited to Mondays, 
Wednesdays, Saturdays; Thanksgiving, 
Christmas, and New Year's Days; and the 
opening and closing days of the applicable 
waterfowl seasons. 

(30) Hofmann Forest Game Land in Jones and 
Onslow counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
first Wednesday of the week following 
Thanksgiving through the following Satur 
dayr Saturday of the next succeeding week. 

(34) Holly Shelter Game Land in Pender County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the fourth Saturday after 
Thanksgiving. Deer of either sex may also 
be taken the Friday preceding the Eastern 
muzzle-loading season with any legal 
weapon and the Saturday preceding Eastern 
bow season with bow and arrow by partici- 
pants in the Disabled Sportsman Program 

(C) Waterfowl may be taken on the opening 
and closing days of the applicable water- 
fowl seasons regardless of the day of the 
week on which they occur. 

(33) HuntsvUle Community Farms Game Land in 

Yadkin County 

(A) Three Days per Week Area 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



509 



PROPOSED RULES 



(B) Deer of either sex may be taken from the 
second Wednesday after Thanksgiving 
through the third Saturday after TTianksgiv- 
ing. 

(34) Hyco Game land in Person and Caswell counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through Saturday of next succeeding 
week 

(35) f53-) Jordan Game Land in Chatham, Durham, 
Orange and Wake counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(C) Waterfowl may be taken only on Mondays, 
Wednesdays, Saturdays; on Thanksgiving, 
Christmas and New Year's Days; and on (41) 
the opening and closing days of the applica- 
ble waterfowl seasons. 

(D) Horseback riding, including all equine 
species, is prohibited. 

(E) Target shooting is prohibited. 

(36) (3-4) Lantern Acres Game Land in Tyrrell and (42) 
Washington counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from 
Wednesday through Saturday of the week 
following Thanksgiving. Thanksgiving in 

that portion Ln TyrroU County' and Wodncs (43) 

day of the week following Thank9giviDg 
through th e Saturday of th e n e xt suocooding 
w e ok in that portion in Washington Count)'. 

(37) (3^ Lee Game Land in Lee County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the (44) 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(38) (34) Linwood Game Land in Davidson County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the (45) 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(39) (3^ Moore Game Land in Moore County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- (46) 
giving through the Saturday of the next 
succeeding week. 

(40) f3S) Nantahala Game Land in Cherokee, Clay, 
Graham, Jackson, Macon, Swain and 
Transylvania counties 

(A) Six Days per Week Area 



(B) Deer of either-sex may be taken the second 
Saturday in December in that portion lo- 
cated in Transylvania County. 

(C) Raccoon and opossum may be hunted only 
from sunset Friday until sunrise on Satur- 
day and from sunset until 12:00 midnight 
on Saturday on Fires Creek Bear Sanctuary 
in Clay County and in that part of Chero- 
kee County north of US 64 and NC 294, 
east of Persimmon Creek and Hiwassee 
Lake, south of Hiwassee Lake and west of 
Nottely River; in the same part of Chero- 
kee County dog training is prohibited from 
March 1 to the Monday on or nearest 
October 15. 

(D) It is unlawful to train dogs or allow dogs to 
run unleashed on any game land in Graham 
County between March 1 and the Monday 
on or nearest October 15. 

(39) Neuse River Game Land in Craven County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(40) New Lake Game Land in Hyde County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(44) North River Game Land in Currituck County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(43) Northeast Cape Fear Game Land in Pender 
County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through January 1 . 

(43) Northwest River Marsh Game Land in 
Currituck County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(44) Pee Dee River Game Land in Anson, Mont- 
gomery, Richmond and Stanly counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 



510 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



(C) Use of centerfire rifles prohibited in that 
portion in Anson and Richmond counties 
North of US-74. 

(47) (45) Person Game Land in Person County (53) 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(C) Waterfowl may be taken only on Tuesdays, 
Thursdays and Saturdays, Christmas and 
New Year's Days, and on the opening and 
closing days of the applicable waterfowl 
seasons. 

(48) f44) Pisgah Game Land in Avery, Buncombe, 
Burke, Caldwell, Haywood, Henderson, Madison, 
McDowell, Mitchell, Transylvania, Watauga and 
Yancey counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
third Friday after Thanksgiving through the 
third Saturday after Thanksgiving in that 
portion in Burke, Caldwell, McDowell and 
Watauga counties and on the second Satur- 
day in December in that portion in Avery 
(that pan south of the Blue Ridge Park- 
way), Buncombe, Haywood. Henderson, 
Madison, Mitchell, Transylvania and 
Yancey counties. 

(C) Harmon Den and Sherwood Bear Sanctuar- 
ies in Haywood County are closed to hunt- 
ing raccoon, opossum and wildcat. Train- 
ing raccoon and opwssutn dogs is prohibited 
from March 1 to the Monday on or nearest 
October 15 in that part of Madison County 
north of the French Broad River, south of 
US 25-70 and west of SR 1319. 

(49) (-4^ Pungo River Game Land in Hyde County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(50) f4*) Roanoke River Wetlands in Bertie, Halifax (54) 
and Martin counties 

(A) Hunting is by Permit only. Vehicles are 
prohibited on roads or trails except those 
operated on official Commission business 
or by permit holders. 

(51) f49) Robeson Game Land in Robeson County 

(A) Three Days per Week Area (55) 

(B) Deer of either-sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(52) f50) Sampson Game Land in Sampson County 
(A) Three Days per Week Area 



(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through January 1. 

f54^ Sandhills Game Land in Moore, Richmond 

and Scotland counties 

(A) Three Days per Week Area 

(B) The regular gun season for deer consists of 
the open hunting dates from the second 
Monday before Thanksgiving through the 
third Saturday after Thanksgiving except on 
the field trial grounds where the gun season 
is from the second Monday before Thanks- 
giving through the Saturday following 
Thanksgiving. Deer may be taken with 
bow and arrow on all open hunting dates 
during the bow and arrow season, as well 
as during the regular gun season. Deer 
may be taken with muzzle-loading firearms 
on Monday, Wednesday and Saturday of 
the second week before Thanksgiving 
week, and during the regular gun season. 

(C) Gun either-sex deer hunting is by permit 
only the Thursday and Friday before 
Thanksgiving Week. For participants in 
the Disabled Sportsman Program, either- 
sex deer hunting with any legal weapon is 
permitted on all areas the Thursday and 
Friday prior to the muzzle-loading season 
described in the preceding paragraph. 
Except for the deer seasons indicated in the 
preceding paragraph and the managed 
either-sex permit hunts, the field tnal 
grounds are closed to all hunting during the 
period October 22 to March 3 1 . 
In addition to the regular hunting days, 
waterfowl may be taken on the opening and 
closing days of the applicable waterfowl 
seasons 

Wild turkey hunting is by permit only. 
Dove hunting on the field trial grounds will 
be prohibited from the second Sunday in 
September through the remainder of the 
hunting season. 

(53) Sauratown Plantation Game Land in Stokes 
County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken from the 
second Wednesday after Thanksgiving 
through the third Saturday after Thanksgiv- 
ing. 

(53) Shearon Harris Game Land in Chatham and 
Wake counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 



(D) 



(E) 
(F) 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



511 



PROPOSED RULES 



(C) Waterfowl may be taken only on Mondays, 
Wednesdays, Saturdays; on Thanksgiving, 
Christmas and New Year's Days; and on 
the ojjening and closing days of the applica- 
ble waterfowl seasons. 

(56) (54) South Mountains Game Land in Burke and 
Cleveland counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
second Wednesday after Thanksgiving 
through the third Saturday after Thanksgiv- 
ing in that portion in Cleveland County and 
from the third Friday after Thanksgiving 
through the third Saturday after Thanksgiv- 
ing in that portion in Burke County. 

(57) (55) Sutton Lake Game Land in New Hanover 
County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from 
Wednesday through Saturday of the week 
following Thanksgiving. 

(58) (5^ Three Top Mountain Game Land in Ashe 
County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
second Wednesday after Thanksgiving 
through the third Saturday after Thanksgiv- 
ing. 

(59) (5t^ Thurmond Chatham Game Land in Wilkes 
County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
second Wednesday after Thanksgiving 
through the third Saturday after Thanksgiv- 
ing. Participants of the Disabled Sports- 
man Program may also take either-sex deer 
with bow and arrow on the Saturday prior 
to Northwestern bow and arrow season. 

(C) Horseback riding is only allowed during 
June. July, and August and on Sundays 
during the remainder of the year except 
during open turkey and deer seasons. 
Horseback riding is allowed only on roads 
opened to vehicular traffic. Participants 
must obtain a game lands license prior to 
horseback riding on this area. 

(60) (5S) Toxaway Game Land in Transylvania County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken on the 
second Saturday in December. Participants 
of the Disabled Sportsman Program Deer 
may also take deer of either sex with any 
legal weapon on the Saturday prior to the 
first segment of the Western bow and 
arrow season. 

(61) (5^ Uwharrie Game Land in Davidson, Mont- 
gomen,' and Randolph counties 



(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
first Wednesday after Thanksgiving through 
the Saturday of the next succeeding week. 

(62) (60) Vance Game Land in Vance County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following TTianks- 
giving through January 1 . 

(C) The use of dogs, centerfire rifles and hand- 
guns for hunting deer is prohibited on the 
Nutbush Peninsula tract. 

(63) Wayne County Game Land in Wayne County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
Wednesday of the week following Thanks- 
giving through the Saturday of the next 
succeeding week. 

(64) (644 White Oak River Impoundment Game Land 
in Onslow County 

(A) Three Days per Week Area 

(B) Deer of either-sex may be taken from the 
first Wednesday after Thanksgiving through 
January 1. 

(C) Waterfowl may be taken on the opening 
and closing days of the applicable water- 
fowl seasons regardless of the day of the 
week on which they occur. 

(65) (63) Yadkin Game Land in Caldwell Coimty 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken from the 
third Friday after Thanksgiving through the 
third Saturday after Thanksgiving. 

(g) On permitted type hunts deer of either sex may be 
taken on the hunt dates indicated on the permit. Completed 
apphcations must be received by the Commission not later 
than the first day of September next preceding the dates of 
hunt. Permits are issued by random computer selection, are 
mailed to the permittees prior to the hunt, and are nontrans- 
ferable. A hunter making a kill must tag the deer and 
report the kill to a wildlife cooperator agent. 

(h) The following game lands and refuges are closed to 
all hunting except to those individuals who have obtained a 
valid and current permit from the Wildlife Resources 
Commission: 

Bertie, Halifax and Martin counties— Roanoke 
River Wetlands; 

Bertie County— Roanoke River National Wildlife 
Refuge. 

Burke County— John's River Waterfowl Refuge 
Dare County— Dare Game Lands (Those parts of 
bombing range posted against hunting) 
Davie— Hunting Creek Swamp Waterfowl Refuge 
Gaston, Lincoln and Mecklenburg coun- 
ties—Cowan's Ford Waterfowl Refuge. 

Authority- G.S. 113-134; 113-264; 113-291.2; 113-291.5; 



512 



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11:8 



PROPOSED RULES 



113-305. 



94:«4c«4c4c»»4i4:«:|c:|c4c 



Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Wildlife Resources 
Commission intends to amend rules cited as 15A NCAC IOC 
.0205, .0305. 

Proposed Effective Date: July 1, 1997 

Public Hearings will be conducted at the following times, 
locations and dates: 

15A NCAC IOC .0205 

August 5, 1996 

7:00 p.m. 

Buncombe County Courthouse 

District Court Room 

Asheville, NC 

ISA NCAC IOC .0305 

August 9, 1996 

1:00 p.m. 

Archdale Building 

3rd Floor Conference Room 

Raleigh, NC 

Reason for Proposed Action: 

15A NCAC IOC .0205 - to regulate/restrict the harvest of 

trout in public mountain trout waters. 

15A NCAC IOC .0305 - to regulate/restrict take of inland 

game fish. 

Comment Procedures: Interested persons may present their 
views either orally or in writing at the hearing. In addition , 
the record of hearing will be open for receipt of written 
comments from July 15, 1996 through August 14, 1996. 
Such written comments must be delivered or mailed to the 
North Carolina Wildlife Resources Commission, 512 N. 
Salisbury Street, Raleigh, NC 27604-1 188. 

Fiscal Note: Viese Rules do not affect the expenditures or 
revenues of state or local government funds. Viese Rules do 
not have a .substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

SUBCHAPTER IOC - INLAND FISHING 
REGULATIONS 

SECTION .0200 - GENERAL REGULATIONS 

.0205 PUBLIC MOUNTAIN TROUT WATERS 

(a) Designation of Public Mountain Trout Waters. The 
waters listed herein or in 15A NCAC lOD .0004 are 
designated as Public Mountain Trout Waters and further 
classified as Wild Trout Waters or Hatchery Supported 
Waters. For specific classifications, see Subparagraphs (1) 



and (2) of this Paragraph. These waters are posted and 
lists thereof are filed with the clerks of superior court of the 
counties in which they are located: 

(1) Hatchery Supported Trout Waters. The listed 
waters in the counties in Subparagraphs (1)(A)- 
(Y) are classified as Hatchery Supported Public 
Mountain Trout Waters. Where specific water- 
courses or impoundments are listed, indentation 
indicates that the watercourse or impoundment 
listed is tributary to the next preceding water- 
course or impoundment listed and not so indented. 
This classification applies to the entire water- 
course or impoundment listed except as otherwise 
indicated in parentheses following the listing. 
Other clarifying information may also be included 
parenthetically. The tributaries of listed water- 
courses or impoundments are not included in the 
classification unless specifically set out therein. 
Otherwise, Wild Trout regulations apply to the 
tributaries. 

(A) Alleghany County: 
New River (not trout water) 

Little River (Whitehead to McCann Dam) 

Crab Creek 

Brush Creek (except where posted 

against trespass) 

Big Pine Creek 

Laurel Branch 

Big Glade Creek 

Bledsoe Creek 

Pine Swamp Creek 

Waterfalls Creek (South Fork Little 

River)(except where posted against 

trespass) 

South Fork New River (not trout water) 

Prather Creek 

Cranberry Creek 

Piney Fork 

Meadow Fork 
Yadkin River (not trout water) 
Roaring River (not trout water) 
East Prong Roaring River (that portion on 
Stone Mountain State Park) Delayed Har- 
vest Waters regulations apply. See Sub- 
paragraph (5) of Paragraph (a) of this Rule. 

(B) Ashe County: 

New River (not trout waters) 

North Fork New River (Watauga Co. line 
to Sharp Dam) 

Helton Creek (Virginia State line to 

New River) 

Big Horse Creek (SR 1361 bridge to 

Tuckerdale) 

Buffalo Creek (headwaters to junction 

of NC 194-88 and SR 1131) 

Big Laurel Creek 

Three Top Creek (portion not on game 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



513 



PROPOSED RULES 



lands) 

Hoskins Fork (Watauga County line to 
North Fork New River) 
South Fork New River (not trout waters) 
Cranberry Creek (Alleghany County 
line to South Fork New River) 
Nathans Creek 

Peak Creek (lieadwaters to Trout Lake, 
except Blue Ridge Parkway waters) 
Trout Lake (Delayed harvest regulations 
apply. See Subparagraph (5) of Para- 
graph (a) of this Rule.) 
Roan Creek 
North Beaver Creek 
South Beaver Creek ("headwaters to 
Ashe Lake) 

Pine Swamp Creek (all forks) 
Old Fields Creek 

Mill Creek (except where posted against 
trespass) 

(C) Aver>' County: 

Nolichucky River (not trout waters) 

North Toe River (lieadwaters to Mitchell 
County line, except where posted against 
trespass) 

Squirrel Creek 
EDc River (SR 1306 crossing to Tennessee 
State line, including portions of tributaries 
on game lands) 

Catawba River (not trout water) 
Johns River (not trout water) 
Wilson Creek [not Hatcher,' Supported 
trout water, see Subparagraph (2) of 
Paragraph (a) of this Rule] 

Lost Co%'e Creek [not Hatchery Sup- 
ported trout water, see Subparagraph 
(4) of Paragraph (a) of this Rule] 
Gragg Prong (including tributaries) 
Webb Prong (including tributaries) 
Buck Timber Creek [not Hatcherv' Sup- 
fKDrted trout water, see Subparagraph (2) of 
Paragraph (a) of this Rule] 
Can.' Flat Branch [not Hatcher)' Supported 
trout water, see Subparagraph (2) of Para- 
graph (a) of this Rule] 
Boyde Coffey Lake 
Archie Coffey Lake 
Linville River [Land Harbor line (below dam) 
to Blue Ridge Parkwa\' boundary line, except 
where posted against trespass] 
Milltimber Creek 

(D) Buncombe Count)': 

French Broad River (not trout water) 

Big Ivy Creek (Ivy River) (Dillingham 
Creek to US 19-23 bridge) 

Dillingham Creek (Comer Rock Creek 

to Big I\y Creek) 



Stony Creek 

Mineral Creek (including portions of 
tributaries on game lands) 
Comer Rock Creek (including tributar- 
ies, except Walker Branch) 
Reems Creek (Sugar Camp Fork to US 19-23 
bridge, except where posted against trespass) 
Swannanoa River (SR 2702 bridge near 
Ridgecrest to Sayles Bleacherv' in 
Asheville, except where posted against 
trespass) 

Bent Creek (headwaters to N.C. Arboretum 
boundar)' line, including portions of tribu- 
taries on game lands) 

Lake Powhatan 
Cane Creek (headwaters to SR 3138 
bridge) 

(E) Burke County: 

Catawba River (not trout water) 

South Fork Catawba River (not trout water) 
Henry Fork (lower Morganton water- 
shed Line downstream to SR 1919 at Ivy 
Creek) 

Jacob Fork (S hinn y Creek to lower 
South Mountain State Park bound- 
ary) Delayed Harvest 

Regulations apply. See Subpara- 
graph (a)(5) of this Rule. 
Johns River (not trout water) 

Parks Creek (portion not on game lands 
not trout water) 

Carroll Creek (game lands portion 
above SR 1405 including tributaries) 
Linville River (game lands portion below 
the Blue Ridge Park'way including portions 
of tributaries on game lands and from first 
bridge on SR 1223 below Lake James 
powerhouse to Muddy Creek) 

(F) Caldwell County: 
Catawba River (not trout water) 

Johns River (not trout water) 

Wilson Creek (Phillips Branch to 
Browns Mountain Beach dam. except 
where posted against trespass) 

Estes Mill Creek (not trout water) 
TTiorp e Thorps Creek (falls to NC 
90 bridge) 
Mulbeny Creek (portion not on game lands 
not trout water) 

Boone Fork (not Hatcherv' Supported 
trout water. See Subparagraph (2) of 
Paragraph (a) of this Rule) 
Boone Fork Pond 

(G) Cherokee County: 
Hiwassee River (not trout water) 

Shuler Creek (headwaters to Tennessee 
line, except where posted against trespass 



514 



NORTH CAROLINA REGISTER 



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11:8 



PROPOSED RULES 



including portions of tributaries on game 
lands) 

North Shoal Creek (Crane Creek) (headwa- 
ters to SR 1325, including portions of 
tributaries on game lands) 
Persimmon Creek 

Davis Creek (including portions of tributar- 
ies on game lands) 

Bald Creek (including portions of tribu- 
taries on game lands) 
Beaver Dam Creek (headwaters to SR 1326 
bridge, including portions of tributaries on 
game lands) 
Valley River 

Hyatt Creek (including portions of 
tributaries on game lands) 
Webb Creek (including portions of 
tributaries on game lands) 
Junaluska Creek (Ashtum Creek to 
Valley River, including portions of 
tributaries on game lands) 
(H) Clay County: 

Hiwassee River (not trout water) 

Fires Creek (first bridge above the lower 
game land line on US Forest Service road 
442 to SR 13(X)) 

Tusquitee Creek (headwaters to lower SR 
1300 bridge, including portions of Bluff 
Branch on game lands) 

Tuni Creek (including portions of tribu- 
taries on game lands) 
Chatuge Lake (not trout water) 
Shooting Creek ( headwaters SR 1349 
bridge to US 64 bridge at SR 1338) 

Hothouse Branch (including portions of 
tributaries on gamelands) 
Vineyard Creek (including portions of 
tributaries on game lands) 
(I) Graham County: 

Little Tennessee River (not trout water) 
Calderwood Reservoir (Cheoah Dam to 
Tennessee State line) 
Cheoah River (not trout water) 
Yellow Creek 

Santeelah Reservoir (not trout water) 
West Buffalo Creek 

Huffman Creek (Little Buffalo 
Creek) 
Santeelah Creek (Johns Branch to 
mouth including portions of tributar- 
ies within this section located on 
game lands, excluding Johns Branch) 
Big Snowbird Creek (old railroad junc- 
tion to mouth, including portions of 
tributaries on game lands) 
Mountain Creek (game lands boundary 
to SR 1138 bridge) 



Long Creek (portion not on game 
lands) 

Tulula Creek (headwaters to lower 
bridge on SR 4i44^ 1275) 
Franks Creek 
Cheoah Reservoir 
Fontana Reservoir (not trout water) 
Stecoah Creek 
Sawyer Creek 

Panther Creek (including portions of 
tributaries on game lands) 
(J) Haywood County: 

Pigeon River (not trout water) 

Hurricane Creek (including portions of 
tributaries on game lands) 
Cold Springs Creek (including portions of 
tributaries on game lands) 
Jonathans Creek - lower (concrete bridge in 
Dellwood to Pigeon River) 
Jonathans Creek - upper [SR 1302 bridge 
(west) to SR 1307 bridge] 
Hemphill Creek 

West Fork Pigeon River (headwaters to 
Champion International property line, 
including portions of tributaries within 
this section located on game lands, 
except Middle Prong) 
Richland Creek (Russ Avenue bridge to US 
19A-23 bridge) Delayed Harvest Regula- 
tions apply. See Subparagraph (a)(5) of 
this Rule. 
(K) Henderson County: 

Broad Rivor (not trout water) 

Rook)' (Rocky) Broad River (one-half mile 

north of Bat Cave to Rutherford County 

line) 

Green River - upper (mouth of Befe Bobs 

Creek to mouth of Rock Creek) 

Green River - lower (Lake Summit Dam to 

Polk County line) 

Camp Creek (SR 1919 to Polk County 
line) 

Big (Big) Hungry River 
Little Hungry River 
French Broad River (not trout water) 
Mills River (not trout water) 

North Fork Mills River (game lands 
portion below the Hendersonville water- 
shed dam). Delayed Harvest Regula- 
tions apply. See Subparagraph (a)(5) of 
this Rule. 
(L) Jackson County: 

Tuckasegee River (confluence with West 
Fork Tuckasegee River to SR 1392 bridge 
at Wilmot) Delayed Harvest Regulations 
apply to that portion between NC 107 
bridge at Love Field and NC 1 16 bridge at 



11:8 



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July 15, 1996 



515 



PROPOSED RULES 



Webster. See Subparagraph (a)(5) of this 

Rule. 

Scott Creek (entire stream, except where 

posted against trespass) 

Dark Ridge Creek (Jones Creek to 

Scotts Creek) 

Buff Creek (SR 1457 bridge below Bill 

Johnson's place to Scott Creek) 
Savannah Creek (Headwaters to Bradley's 
Packing House on NC 116) 

Greens Creek (Greens Creek Baptist 

Church on SR 1730 to Savannah Creek) 
Cullowhee Creek (Tilley Creek to 
Tuckasegee River) 
Bear Creek Lake 

Wolf Creek [not Hatchery Supported trout 
water, see Subparagraph (2) of Paragraph 
(a) of this Rule] 

Wolf Creek Lake 

Balsam Lake 
Tanasee Creek [not Hatchery Supported 
trout water, see Subparagraph (2) of Para- 
graph (a) of this Rule] 

Tanasee Creek Lake 
West Fork Tuckasegee River (Shoal Creek 
to existing water level of Little Glenville 
Lake) 

Shoal Creek (Glenville Reservoir pipe- 
line to mouth) 
(M) Macon County: 

Little Tennessee River (not trout water) 

Nantahala River (Nantahala Dam to Swain 
County line) Delayed Harvest Regulations 
apply to the portion from 'Wliiteoak Creek 
to the Nantahala Power and Light power- 
house discharge canal. See Subparagraph 
(a)(5) of this Rule. 
Queens Creek Lake 

Bumingtown Creek (including portions of 
tributaries on game lands) 
CuUasaja River (Sequoah Dam to US 64 
bridge near junction of SR 1672, including 
portions of tributaries on game lands, 
excluding those portions of Big Buck Creek 
and Turtle Pond Creek on game lands. 
Wild trout regulations apply. See Subpara- 
graphs (2) and (6) of Paragraph (a) of this 
Rule.) 

Ellijay Creek (except where posted 

against trespass, including portions of 

tributaries on game lands) 

Skitty Creek 
Cliffside Lake 

Cartoogechaye Creek (US 64 bridge to 

Little Tennessee River) 

Tessentee Creek (Nichols Branch to 

Little Tennessee River, except where 



posted against trespassing) 
Savannah River (not trout water) 

Big Creek (base of falls to Georgia 
State line, including portions of tributar- 
ies within this Section located on game 
lands) 
(N) Madison County: 

French Broad River (not trout water) 

Shut-in Creek (including portions of tribu- 
taries on game lands) 
Spring Creek (junction of NC 209 and NC 
63 to lower US Forest Service boundary 
line, including portions of tributaries on 
game lands) 

Meadow Fork Creek 

Roaring Fork (including portions of 
tributaries on game lands) 
Little Creek 
Max Patch Pond 
Mill Ridge Pond 
Big Laurel Creek (Mars Hill Watershed 
boundary to Rice's Mill Dam) 

Shelton Laurel Creek (headwaters to 
NC 208 bridge) 

Big Creek (headwaters to lower 
game land boumdary, including tribu- 
taries) 
Mill Creek 
Big Pine Creek 

Puncheon Fork (Hampton Creek to 
Big Laurel Creek) 
(O) McDowell County: 

Catawba River (portion not on game lands, not 
trout water) 

Buck Creek (portion not on game lands, 
not trout water) 

Little Buck Creek (game land portion 
including portions of tributaries on 
game lands) 
Curtis Creek (Newberry Creek to US 70 
bridge) 

North Fork Catawba River (headwaters to 
North Cove School, SR 1569) 

Armstrong Creek (Cato Holler line 
downstream to upper Greenlee line) 
Mill Creek (upper railroad bridge to U.S. 
70 Bndge, except where posted against 
trespass) 
(P) Mitchell County: 

Nolichucky River (not trout water) 

Big Rock Creek (headwaters to NC 226 
bridge at SR 1307 intersection) 

Little Rock Creek (Green Creek Bridge 

to Big Rock Creek, except where posted 

against trespass) 

Cane Creek (SR 1219 to Nolichucky River) 

Grassy Creek (East Fork Grassy Creek to 



516 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



mouth) 

East Fork Grassy Creek 
North Toe River (Avery County line to SR 
1121, Altapass Road) 
(Q) Polk County: 

Broad River (not trout water) 

North Pacolet River (Pacolet Falls to NC 
108 bridge) 

Fork Creek (Fork Creek Church on SR 
4408 1100 to North Pacolet River) 
Big Fall Creek (portion above and be- 
low water supply reservoir) 
Green River (Henderson County line to 
mouth of Brights Creek) 

Little Cove Creek (including pwrtions of 
tributaries on game lands) 
Cove Creek (including portions of tribu- 
taries on game lands) 
Camp Creek [Henderson County line 
(top of falls) to Green River] 
FuUoms Creek (SR 1154 to Green 
River, including portions of tributaries 
on game lands) 
(R) Rutherford County: 

Broad River (not trout water) 

Rocky (Kocky) Broad River (Henderson 
County line to head of rapids at Goose 
Pond Hole, except where posted against 
trespass) 
(S) Stokes County: 

Dan River (SR 1416 bridge downstream to a 
point 200 yards below the end of SR 1421) 
(T) Surry County: 

Yadkin River (not trout water) 

Ararat River (SR 1727 downstream to the 
Business US 52 bridge) Delayed Harvest 
regulations apply. See Subparagraph (5) of 
Paragraph (a) of this Rule. 

Stewarts Creek (not trout water) 

Pauls Creek (Virginia State line to 
0.3 mile below SR 1625 bridge - 
lower Caudle property line) 
Fisher River (Cooper Creek) (Vir- 
ginia State line to NC 89 bridge) 
Little Fisher River (Virgima State 
line to NC 89 bridge) 
(U) Swain County: 

Little Tennessee River (not trout water) 

Caiderwood Reservoir (Cheoah Dam to 
Tennessee State line) 
Cheoah Reservoir 

Fontana Reservoir (not trout water) 
Alarka Creek 

Nantahala River (Macon County line to 
existing Fontana Reservoir water level) 
Tuckasegee River (not trout water) 

Deep Creek (Great Smoky Mountains 



National Park boundary line to 
Tuckasegee River) 

Connelly Creek (including portions of 
tributaries on game lands) 
(V) Transylvania County: 

French Broad River (junction of west and 
north forks to US 276 bridge) 

Davidson River (Avery Creek to Ecusta 

intake) 

East Fork French Broad River (Glady 

Branch Fork to French Broad River) 

Middle Fork French Broad River 

West Fork French Broad River (SR 1312 

and SR 1309 intersection to junction of 

west and north forks, including portions of 

tributaries within this section located on 

game lands) 

Savannah River (not trout water) 

Thompson River (SR 1152 to South 
Carolina state line, except where posted 
against trespass, including portions of 
tributaries within this section located on 
game lands) 
(W) Watauga County: 

New River (not trout waters) 

North Fork New River (from confluence 
with Maine and Mine branches to Ashe 
County line) 

Maine Branch (headwaters to North Fork 
New River) 

South Fork New River (not trout water) 
Meat Camp Creek 

Norris Fork Creek 
Howards Creek (downstream from 
lower falls) 
Middle Fork New River (Lake Chetola 
Dam to South Fork New River) 
Yadkin River (not trout water) 

Stony Fork (headwaters to Wilkes County 
line) 

Elk Creek (headwaters to gravel pit on SR 
1508, except where posted against trespass) 
Watauga River (SR 1559 at Foscoe down- 
stream to NC 105 bridge) Delayed Harvest 
Regulations apply. See Subparagraph (5) of 
Paragraph (a) of this Rule. 
Beech Creek 

Buckeye Creek Reservoir 
Coffee Lake 
Laurel Creek 

Cove Creek (SR 1233 bridge at Zionville to 
SR 1233 bridge at Amantha) 
Dutch Creek (second bridge on SR 1 134 to 
mouth) 

Boone Fork (headwaters to SR 1562) 
(X) Wilkes County: 

Yadkin River (not trout water) 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



517 



PROPOSED RULES 



Roaring River (not trout water) 

East Prong Roaring River (Bullhead 
Creek to Brewer's Mill on SR 1943) 
(Delayed harvest regulations apply to 
portion on Stone Mountain State Park) 
See Subparagraph (5) of Paragraph (a) 
of this Rule. 

Stone Mountain Creek (Delayed 
Harvest Regulations apply. See 
Subparagraph (5) of Paragraph (a) of 
this Rule.) 
Middle Prong Roaring River (headwaters to 
second bridge on SR 1736) 

Double Creek (Harris Creek to Middle 
Prong Roaring River) 
Harris Creek (end of SR 4^44 1736 to 
mouth) Double Creek) 
PeH BeU Branch Pond 
Boundary Line Pond 
West Prong Roaring River (not trout wa- 
ters) 

Pike Creek 

Pike Creek Pond 
Reddies River (not trout water) 

Middle Fork Reddies River (Clear 
Prong) (headwaters to bridge on SR 
1580) 

South Fork Reddies River (headwa- 
ters to NC 16 bridge) confluence 
with Middle Fork Reddies River) 
North Fork Reddies River (Vannoy 
Creek) (headwaters to Union School 
bridge on SR 1559) 

Darnell Creek North — Prong 
R o ddies Rivor (Darn e ll Cr ee k) 
(North Prong Reddies River) 
(downstream ford on SR 1569 to 
confluence with North Fork 
Reddies River) 
Lewis Fork Creek (not trout water) 

South Prong Lewis Fork (headwaters to 
Lewis Fork Baptist Church) 

Fall Creek (except portions posted 
against trespass) 
(Y) Yancey County: 

Nolichucky River (not trout water) 

Cane River [Bee Branch (SR 1110) to 
Bowlens Creek] 

Bald Mountain Creek (except portions 
posted against trespass) 

Indian Creek (not trout water) 

Price Creek (junction of SR II20 
and SR 1121 to Indian Creek) 
North Toe River (not trout water) 
South Toe River (Clear Creek to lower 
boundary line of Yancey County recreation 
park except where posted against trespass) 



(2) Wild Trout Waters. All waters designated as 
Public Mountain Trout Waters on the game lands 
listed in Subparagraph (b)(2) of 15A NCAC lOD 
.0004, are classified as Wild Trout Waters unless 
specifically classified otherwise in (A)(1) of this 
Rule. The trout waters listed in this Subpara- 
graph are also classified as Wild Trout Waters. 

(A) Alleghany County: 

Big Sandy Creek (portion on Stone Mountain 

State Park) 

Ramey Creek (entire stream) 

Stone Mountain Creek (that portion on Stone 

Mountain State Park) 

(B) Ashe County: 

Big Horse Creek (Virginia State Line to SR 
1361 bridge) Catch and Release/ Artificial 
Lures Only Regulations apply. See Subpara- 
graph (a)(3) of this Rule. 

(C) Avery County: 
Birchfield Creek (entire stream) 
Cow Camp Creek (entire stream) 
Cranberry Creek (entire stream) 
Horse Creek (entire stream) 
Jones Creek (entire stream) 
Kentucky Creek (entire stream) 
North Harper Creek (entire stream) 
Plumtree Creek (entire stream) 
Roaring Creek (entire stream) 
Rockhouse Creek (entire stream) 
South Harper Creek (entire stream) 

Wilson Creek (Catch and Release/ Artificial 
Lures Only Regulations apply. See Sub- 
paragraph (a)(3) of this Rule.) 

(D) Buncombe County: 

Carter Creek (game land portion) (Catch and 
Release/ Artificial Lures only regulations apply. 
See Subparagraph (3) of Paragraph (a) of this 
Rule.) 

(E) Burke County: 

All waters located on South Mountain State 
Park, except the main stream of Jacob Fork 
between the mouth of Shinny Creek and the 
lower park boundary where delayed harvest 
regulations apply, apply, and Henry Fork and 
tributaries where catch and release/artificial 
lures only regulations apply. See Subpara - 
graph Subparagraphs (3) and (5) of Paragraph 
(a) of this Rule. 

(F) Caldwell County: 

Buffalo Creek (headwaters to lower Dahl 
property line) 

Joe Fork (Watauga County line to falls) 
Rockhouse Creek (entire stream) 

(G) Graham County: 

South Fork Squalla Squally Creek (entire 

stream) 

Squalla Squally Creek (entire stream) 



518 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



(H) Jackson County: 

Gage Creek (entire stream) 
North Fork Scott Creek (entire stream) 
Tanasee Creek (entire stream) 
Whitewater River (downstream from Silver 
Run Creek to South Carolina State line) 
Wolf Creek (entire stream, except Balsam 
Lake and Wolf Creek Lake) 
(I) Madison County 

Spillcom Creek (entire stream) 
(J) Mitchell County: 

Green Creek (headwaters to Green Creek 
Bridge, except where posted against trespass) 
Little Rock Creek (headwaters to Green Creek 
Bridge, including all tributaries, except where 
posted against trespass) 

Wiles Creek (game land boundary to mouth) 
(K) Transylvania County: 

Whitewater River (downstream from Silver 
Run Creek to South Carolina State line) 
(L) Watauga County: 

Boone Fork (Blue Ridge Parkway boundary 
line to Watauga River) [Catch and Release Fly 
Fishing Only regulations apply. See Subpara- 
graph (4) of Paragraph (a) of this Rule.] 
Dutch Creek (headwaters to second bridge 
on SR 1134) 

Howards Creek (headwaters to lower falls) 
Watauga River (Avery County line to SR 
1559) 
(M) Wilkes County: 

Big Sandy Creek (portion on Stone Mountain 
State Park) 

Garden Creek (portion on Stone Mountain 
State Park) 

Harris Creek and tributaries [portions on Stone 
Mountain State Park) [Catch and Release 
Artificial Lures Only regulations apply. See 
Subparagraph (4) of Paragraph (a) of this 
Rule.] 

Widow Creek (portion on Stone Mountain 
State Park) 
(N) Yancey County: 

Lickskillet Creek (entire stream) 
Middle Creek (game land boundary to mouth) 
Rock Creek (game land boundary to mouth) 
South Toe River (game land boundary down- 
stream to Clear Creek) 
(3) Catch and Release/ Artificial Lures Only Trout 
Waters. Those portions of designated wild trout 
waters as listed in this Subparagraph, including 
tributaries except as noted, are further classified 
as Catch and Release/ Artificial Lures Only wa- 
ters. Only artificial lures having one single hook 
may be used. No fish may be harvested or be in 
possession while fishing these streams: 
(A) Ashe County: 



Big Horse Creek (Virginia State line to SR 
1361 bridge excluding tributaries) 
Three Top Creek (portion located on Three 
Top Mountain Game Lands) 

(B) Avery County: 

Wilson Creek (game land portion) 

(C) Buncombe County: 

Carter Creek (game land portion) 

(D) Burke County: 

Henry Fork (portion on South Mountains State 
Park) 

(E) (©) Jackson County: 
Flat Creek 

Tuckasegee River (upstream of Clarke prop- 
erty) 

(F) (E) McDowell County: 
Newberry Creek (game land portion) 

(G) (F) Wilkes County: 

Harris Creek (portion on Stone Mountain State 
Park) 
(H) (G) Yancey County: 
Lower Creek 
Upper Creek 

(4) Catch and Release/ Artificial Flies Only Trout 
Waters. Those portions of designated wild trout 
waters as listed in this Subparagraph, including 
tributaries except as noted, are further classified 
as Catch and Release/Fly Fishing Only waters. 
Only artificial flies having one single hook may 
be used. No fish may be harvested or be in 
possession while fishing these streams: 

(A) Avery County: 

Lost Cove Creek (game land portion, exclud- 
ing Gragg Prong and Rockhouse Creek) 

(B) Transylvania County: 

Davidson River (tieadwaters to Avery Creek, 
excluding Avery Creek, Looking Glass Creek 
and Grogan Creek) 

(C) Watauga County: 

Boone Fork (portion between Blue Ridge 
Parkway boundary and the Watauga River) 

(D) Yancey County: 

South Toe River (portion from the concrete 
bridge above Black Mountain Campgroup 
downstream to game land boundary, excluding 
Camp Creek and N e al s Big Lost Cove Creek) 

(5) Delayed Harvest Trout Waters. Those portions of 
designated Hatchery Supported Trout Waters as 
Usted in this Subparagraph, excluding tributaries 
except as noted, are further classified as Delayed 
Harvest Waters. Between 1 October and one-half 
hour after sunset on the Friday before the first 
Saturday of the following June, inclusive, it is 
unlawful to possess natural bait and only artificial 
lures with one single hook may be used. No fish 
may be harvested or be in possession while 
fishing these streams during this time. These 



11:8 



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July 15, 1996 



519 



PROPOSED RULES 



waters are closed to fishing between one-half hour 
after sunset on the Friday before the first Saturday 
in June and 6:00 a.m. on the first Saturday in 
June. At 6:00 a.m. on the first Saturday in June 
these streams open for fishing under Hatchery 
Supported Waters regulations: 

(A) Ashe County: 
Trout Lake 

(B) Burke County: 

Jacob Fork (Shinny Creek to lower South 
Mountains State Park boundary) 

(C) Haywood County: 

Richland Creek (Russ Avenue bridge to US 
19A-23 bridge) 

(D) Henderson County: 

North Fork Mills River (game land portion 
below the Hendersonville watershed dam) 

(E) Jackson County: 

Tuckasegee River (NC 107 bridge at Love 
Field Downstream to NC 116 bridge at Web- 
ster) 

(F) Macon County: 

Nantahala River (portion from Whiteoak Creek 
to the Nantahala Power and Light power house 
discharge canal) 

(G) Surry County: 

Ararat River (SR 1727 downstream to Business 

US 52 bridge) 
(H) Watauga County: 

Watauga River (SR 1559 bridge at Foscoe 

downstream to NC 105 bridge) 
(I) Wilkes County: 

East Prong Roaring River (from Bullhead 

Creek downstream to the Stone Mountain State 

Park lower boundary) 

Stone Mountain Creek (from falls at Allegheny 

County line to confluence with East Prong 

Roaring River and Bullhead Creek in Stone 

Mountain State Park) 
(6) Wild Trout/Natural Bait Waters. Those portions 
of designated Wild Trout Waters as listed in this 
Subparagraph, including tributaries except as 
noted, are further classified as Wild Trout/Natural 
Bait Waters. All artificial lures and natural baits, 
except live fish, are allowed provided they are 
fished using only one single hook. The creel 
limit, size limit, and open season are the same as 
other Wild Trout Waters [see 15A NCAC IOC 
.0305(a)]. 

(A) Cherokee County: 

Tellico River (Fain Ford to Tennessee state 
line excluding tributaries) 

(B) Clay County: 

Buck Creek (game land portion downstream of 
US 64 bridge) 

(C) Graham County: 
Deep Creek 



Long Creek (game land portion) 

(D) Jackson County: 

Chattooga River (SR 1100 bridge to South 
Carolina state line) 

(lower) Fowler Creek (game land portion) 
Scotsman Creek (game land portion) 

(E) Macon County: 

Chattooga River (SR 1100 bridge to South 

Carolina state line) 

Jarrett Creek (game land portion) 

Kimsey Creek 

Overflow Creek (game land portion) 

Park Creek 

Tellico Creek (game land portion) 

Turtle Pond Creek (game land portion) 

(F) Transylvania County: 

North Fork French Broad River (game land 
portions downstream of SR 1326) 
(b) Fishing in Trout Waters 

(1) Hatchery Supported Trout Waters. It is unlawful 
to take fish of any kind by any maimer whatso- 
ever from designated public mountain trout waters 
during the closed seasons for trout fishing. The 
seasons, size limits, creel limits and possession 
limits apply in all waters, whether designated or 
not, as public mountain trout waters. Except in 
power reservoirs and city water supply reservoirs 
so designated, it is unlawful to fish in designated 
public mountain trout waters with more than one 
line. Night fishing is not allowed in most hatch- 
ery supported trout waters on game lands [see 
15A NCAC lOD .0004(b)(1)]. 

(2) Wild Trout Waters. Except as otherwise provided 
in Subparagraphs (3), (4), and (6) of Paragraph 
(a) of this Rule, the following rules apply to 
fishing in wild trout waters. 

(A) Open Season. There is a year round open 
season for the licensed taking of trout. 

(B) Creel Limit. The daily creel limit is four 
trout. 

(C) Size Limit. The minimum size limit is 
seven inches. 

(D) Manner of Taking. Only artificial lures 
having only one single hook may be used. 
No person shall possess natural bait while 
fishing wild trout waters except those 
waters listed in 15 A NCAC IOC 
.0205(a)(6), 

(E) Night Fishing. Fishing on wild trout wa- 
ters is not allowed between one-half hour 
after sunset and one-half hour before sun- 



Statutory Authority G.S. 113-134; 113-272; 113-292. 



520 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



SECTION .0300 - GAME FISH 

.0305 OPEN SEASONS: CREEL AND SIZE LIMITS 

(a) Generally. Subject to the exceptions listed in Paragraph (b) of this Rule, the open seasons and creel and size limits 
are as indicated in the following table: 



GAME FISHES 


DAILY CREEL 
LIMITS 


MINIMUM 
SIZE LIMITS 


OPEN SEASON 


Mountain Trout: 
Wild Trout 
Waters 


4 


7 in. 


ALL YEAR 

(exc. 2) 


Hatchery Sup- 
ported Trout 
Waters and 
undesignated 
waters 


7 


None 


All year, except 
March 1 to 6:00 a.m 
on first Saturday 
in April 
(exc. 2) 


Muskellunge and 
Tiger Musky 


2 


30 in. 


ATT, YEAR 


Chain Pickerel 
(Jack) 


None 


None 


ATT, YEAR 


Walleye 


8 

(exes. 8 & 9) 


None 


ATT YEAR 

(exc. 8) 


Sauger 


8 


15 in. 


ATT YEAR 


Black Bass: 

Largemouth 


5 
(exc. 9) 


14 in. 
(exes. 3, 7 & 10) 


ATT YEAR 

(exc. 18) 


Smallmouth 
and Spotted 


5 

(exc. 9) 


12 in. 
(exes. 3, 7 & 10) 


ALL YEAR 


White Bass 


25 


None 


AT T YEAR 


Sea Trout (Spotted 
or Speckled) 


10 


12 in. 


ALL YEAR 


Flounder 


None 


13 in. 


AT T , YEAR 


Red drum (channel 


5 


18 in. 


ALL YEAR 



bass, red fish, 
puppy drum) 



Striped Bass 
and their hybrids 
(Morone Hybrids) 



8 aggregate 
(exes. 1 & 5) 



16 m. 
(exes. 1, 5 & 11) 



ALL YEAR 

(exes. 5, 13, & 15) 



Shad: (American 
and hickory) 



None 



None 



ALL YEAR 

(exc. 19) 



Kokanee Salmon 



None 



ALL YEAR 



11:8 



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July 15, 1996 



521 



PROPOSED RULES 



Panfishes 



NONGAME nSHES 



None 


None 


ALL YEAR 


(exes. 4, 12, & 16) 


(exc. 12) 


(exc. 4) 


None 


None 


ALL YEAR 


(exc. 14) 


(exc. 14) 


(exes. 6 & 17) 



(b) Exceptions 

(1) In the Dan River upstream from its confluence 
with Bannister River to the Brantly Steam Plant 
Dam, and in John H. Kerr, Gaston, and Roanoke 
Rapids Reservoirs, and Lake Norman, the creel 
limit on striped bass and Morone hybrids is four 
in the aggregate and the minimum size limit is 20 
inches. 

(2) In designated public mountain trout waters the 
season for taking all species of fish is the same as 
the trout fishing season. There is no closed 
season on taking trout from Nantahala River and 
all tributaries (excluding impoundments) upstream 
from Nantahala Lake, and the impounded waters 
of power reservoirs and municipally-owned water 
supply reservoirs open to the public for fishing. 

(3) Bass taken from Calderwood Reservoir may be 
retained without restriction as to size limit. 

(4) On Mattamuskeet Lake, special federal regulations 
apply. 

(5) In the inland fishing waters of Cape Fear, Neuse, 
Pee-Dee, Pungo and Tar-Pamlico rivers and their 
tributaries and the Roanoke River and its tributar- 
ies, including the Cashie, Middle, and Eastmost 
rivers, extending upstream to the first impound- 
ment, the daily creel limit for striped bass and 
their hybrids is three fish and the minimum length 
limit is 18 inches. In the Roanoke River and its 
tributaries, including the Cashie, Middle, and 
Eastmost rivers-from April 1 to May 31 no fish 
between the lengths of 22 inches and 27 inches 
may be retained. 

(6) See 15 A NCAC IOC .0407 for open seasons for 
taking nongame fishes by special devices. 

(7) The maximum combined number of black bass of 
all species that may be retained per day is five 
fish, no more than two of which may be smaller 
than the applicable minimum size limit. The 
minimum size limit for all species of black bass is 
14 inches, with no exception in Lake Luke 
Marion in Moore County, in Reedy Creek Park 
lakes in Mecklenburg County, in Lake Rim in 
Cumberland County, in Currituck Sound and 
tributaries north of Wright Memorial Bridge, in 
North River and tributaries in Currituck and 
Camden Counties north of a line between Camden 
Point and the end of SR 1 124, in High Rock Lake 
downstream of 1-85, in Badin Lake, in Falls 
Lake, in Lake Tillery, in Blewett Falls Lake, and 
in the New River and its tributaries in Onslow 
County. In and west of Madison, Buncombe, 



Henderson and Polk Counties and in designated 
public mountain trout waters the minimum size 
limit is 12 inches. In B. Everett Jordan Reservoir 
a minimum size limit of 16 inches, with no 
exception, apphes to largemouth bass. In Falls of 
Neuse Reservoir, east of SR 1004, and 
Tuckertown Lake no black bass between the 
lengths of 12 inches and 16 inches may be re- 
tained, and the minimum size limit for black bass 
is 16 inches, except that the daily creel may 
contain two black bass of less than 12 inches in 
length. In W. Kerr Scott Reservoir there is no 
minimum size limit for spotted bass. 

(8) A minimum size limit of 15 inches applies to 
walleye taken from Lake James and its tributaries, 
and the daily creel limit for walleye is four fish in 
Linville River upstream from the NC 126 bridge 
above Lake James, 

(9) The creel limit for black bass and walleye taken 
from Calderwood Reservoir is 10. 

(10) The minimum size limit for all black bass, with 
no exception, is 18 inches in the following trophy 
bass lakes: 

(A) Cane Creek Lake in Union County; 

(B) Lake Thom-A-Lex in Davidson County; 
and 

(C) Sutton Lake in New Hanover County. 

(11) In all impounded inland waters and their tributar- 
ies, except those waters described in Exceptions 
(1), the daily creel limit of striped bass and their 
hybrids may include not more than two fish of 
smaller size than the minimum size limit. 

(12) In Lake Tillery, Falls Lake, High Rock Lake, 
Badin Lake, Tuckertown Lake, Lake Hyco, Lake 
Ramseur and Cane Creek Lake a daily creel limit 
of 20 fish and a minimum size limit of 8 inches 
apply to crappie. 

(13) In designated inland fishing waters of Roanoke 
Sound, Croatan Sound, Albemarle Sound, 
Chowan River, Currituck Sound, Alligator River, 
Scuppemong River, and their tributaries (exclud- 
ing the Roanoke River and Cashie River and their 
tributaries), strijjed bass fishing season, size limits 
and creel limits shall be the same as those estab- 
lished by duly adopted rules or proclamations of 
the Marine Fisheries Commission in adjacent joint 
or coastal fishing waters. 

(14) The daily creel and length limits for channel, 
white, and blue catfish in designated urban lakes 
are provided for in 15A NCAC IOC .0401(d). 

(15) The Executive Director may, by proclamation. 



522 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



suspend or extend the hook-and-line season for 
striped bass in the inland and joint waters of 
coastal rivers and their tributaries. It is unlawful 
to violate the provisions of any proclamation 
issued under this authority. 

(16) In the entire Lumber River from the Camp 
MacKall bridge (SR 1225, at the point where 
Richmond, Moore, Scotland, and Hoke counties 
join) to the South Carolina state line and in all 
public fishing waters east of 1-95, except Tar 
River Reservoir in Nash County, the daily creel 
Umit for sunfish is 30 in aggregate, no more than 
12 of which may be redbreast sunfish. 

(17) It is unlawful to possess bowfm taken from the 
Lumber River and its tributaries. 

(18) In Sutton Lake , no largemouth bass may be 
retained from December 1 through March 31. 

(19) In the Pee Dee River downstream from the 
Blewett Falls dam, shad may be taken with spe- 
cial fishing devices as provided for in ISA NCAC 
IOC .0404 (b) during the permitted special fishing 
device seasons specified in 15A NCAC IOC 
.0407. 

Authority G.S. 113-134; 113-292; 113-304; 113-305. 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

CHAPTER 69 - BOARD FOR LICENSING 
OF SOIL SCIENTISTS 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board for Licensing 
of Soil Scientists intends to adopt rules cited as 21 NCAC 69 
.0101 - .0104, .0201 - .0202, .0301 - .0308, .0401 - .0402 
and .0501. 

Proposed Effective Date: April 1, 1997 

A Public Hearing will be conducted at 10:00 a.m. on 
August 15, 1996 at Room 175, 4405 Bland Road, Raleigh, 
NC 27609. 

Reason for Proposed Action: Passage of G.S. 89F in July, 
1995 established licensing of soil scientists. The licensing 
board created by this statute requires rules for its function 
especially with respect to allowing licensing without exami- 
nation prior to November, 1996. Notice of rule-making 
proceedings was published in the Register on January 2, 
1996. 

Comment Procedures: All persons interested in this matter 
are encouraged to submit written comments or questions to 
H.J. Kleiss, N.C. Board for Licensing of Soil Scientists, 
P.O. Box 5316, Raleigh, NC 27650-5316. Comments will 



be accepted through the public hearing on August 15, 1996. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five 
million dollars ($5,000,000) in a 12-month period. 

SECTION .0100 - STATUTORY AND 
ADMINISTRATIVE PROVISIONS 

.0101 AUTHORITY: NAME AND 
LOCATION OF BOARD 

The "North Carolina Soil Scientist Licensing Act", G.S. 
89F. establishes and authorizes the "North Carolina Board 
for Licensing of Soil Scientists", hereafter called the 
"Board". Unless otherwise directed all communications 
shall be addressed to the North Carolina Board for Licens- 
ing of Soil Scientists at PO Box 5316, Raleigh. North 
Carolina 27650-5316. 

Authority G.S. 89F-4; 89F-5. 

.0102 DUTIES OF OFFICERS 

(a) Chairman. The Chairman shall, when present, 
preside at all meetings, a ppoint committees, sign all certifi- 
cates issued and perform all duties pertaining to his office. 

(b) Vice-chairman. The Vice-Chairman, in the absence 
of the Chairman, shall perform all of the duties of the 
Chairman. 

(c) Secretary-Treasurer: 

(1) The Sec retarv -Treasurer , with the assistance of 
other officers or employees that may be approved 
by the Board, shall conduct and care for all 
correspondence of the Board, keep minutes of all 
meetings, and keep all books and records. He 
shall have charge, care and custody of the official 
documents by order of the Board. He shall 
provide notice to each member of tlie Board of 
the time and place of all meetings of the Board. 

(2) The Secretary -Treasurer, with the assistance of 
other officers or employees that may be approved 
by the Board, shall receive all monies from 
applicants for annual renewal or other fees and 
deposit them in an authorized depository of the 
Board. 

(3) The Secretary-Treasurer shall mail a copy of G.S. 
89F and the rules of this Chapter to each appli- 
cant for a license. 



Authority G.S. 89F-5. 

.0103 SEAL OF THE BOARD 

The official seal of the Board is the Seal of the State of 
North Carolina. 



Authority G.S. 89F-5. 



11:8 



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July 15, 1996 



523 



PROPOSED RULES 



.0104 FEES 

Each completed application form shall be accompanied by 
the prescribed fee. Application fees shall not be refunded 
regardless of Board approval or disapproval of the applica- 
tion. 

(1) application forms for licensing as a Soil Scientist, 
including a copy of the Licensing Act 
and niles $ 



ill 
(3J 
(4] 
(5) 
(6} 

m 

(8i 



application for license 
examination 



license 
renewal 



of license 



restoration of license 
replacement of license 
licensed soil scientist seal 



125.00 
85.00 
50.00 

110.00 
50.00 
30.00 



Authority G.S. 55B-10; 55B-11; 89F-25; 150B-19. 

SECTION .0200 - LICENSING OF SOEL 
SCIENTISTS 

.0201 APPLICATION PROCEDURE 

(a) All applicants for licensing shall furnish the follow- 
ing: 

(1) A legible official copy of their college tran- 
script(s). and verification of graduation sent 
directly from the institution to the Board; 

(2) A record of experience in the practice of soil 
science including any of the applicant's written 
reports, maps, published articles or other materi- 
als the Board determines are appropriate to docu- 
ment the applicant's experience as a soil scientist; 

(3) Four references as defined [n G.S. 89F-10(a)(l); 

(4) Signed copy of Code of Professional Conduct; 

(5) A notarized copy of a completed application form; 
and 

(6) TTie application fee as prescribed in Rule .0104 of 
this Chapter. 

rb) Applicants for licensing under comity shall submit an 
application form along with the prescribed fee. The Board 
may require the submittal of additional information if 
necessary to determine if the a pplicant meets the require- 
ments of G.S. 89F. 

(c) Applicants for reinstatement of an expired license 
shall submit a reinstatement application and the prescribed 
fee. 

(d) Applicants for reinstatement of a revoked or sus- 
pended license shall submit such information as is required 
by the Board, on a case-by-case basis, to determine their 
eligibility for reinstatement, and shall submit the prescribed 
fee. 

(e) Applicants who do not meet the minimum qualifica- 
tion for education as defined in G.S. 89F-10 but have a 
specific record of J_5 years or more experience in the 
practice of soil science of a grade and character that 
indicates to the Board that the applicant is competent to 
practice soil science shall be admitted to the written exami- 



nation. TTie applicant shall show evidence of the practicing 
experience. Upon passing such examination, the applicant 
shall be granted a license to practice soil science in this 
State, provided other requirements of G.S. 89F and the 
rules in this Chapter are met. 

Authority G.S. 89F-5; 89F-9; 89F-10; 89F-12. 



5.00 
50.00 .0202 



EXPIRATIONS AND RENEWALS 
OF CERTIFICATES 

(a) The annual renewal fee of fifty dollars ($50.00) shall 
be payable to the Board. The Board shall send to each 
licensed soil scientist a form that requires the registrant to 
provide the Board with his business and residential address 
and to affix the registrant's North Carolina Licensed Soil 
Scientist seal thereupon. An applicant for renewal shall 
document continuing education as provided in Section .0300 
of this Chapter. The completed forms along with the 
required fee shall be forwarded to the Board. 

(b) All Ucenses will expire on July \^ Ucenses that have 
not been renewed by September 1st may only be renewed by 
filing a restoration application and submitting a restoration 
fee. 

(c) The Soil Scientist-in-Training certificate shall not 
expire and therefore does not have to be renewed. 

Authority G.S. 89F-5. 

SECTION .0300 - CONTINUING PROFESSIONAL 
COMPETENCY 

.0301 INTRODUCTION 

Every licensee shall meet the continuing professional 
education requirements of this Section as a condition for 
license renewal. 

Authority G.S. 89F-5. 

.0302 DEFINmONS 

Terms used in this Section are defined as follows: 

( 1) Professional Development Hour (PDH) ; One 
contact hour (nominal) of instruction or presenta- 
tion. 

(2) CollegeAJnit Semester/ Quarter Hour ; Credit 
assigned by a college or university for a com- 
pleted course. 

(3) Course/ Activity ; Any course or activity with a 
clear purpose and objective that maintains, im- 
proves, or expands the skills and knowledge of 
the licensee. 

(4) Sponsor ; Organization or individual that has 
supplied information on a form furnished by the 
Board with respect to the organization or individ- 
ual's ability to provide instruction in "for credit" 
courses. Courses offered by those designated as 
"Sponsor" shall contain a clear purpose and 
objective, and result in the maintenance, improve- 



524 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



PROPOSED RULES 



ment, or expansion of skills and knowledge 
relevant to a licensee's field of practice. Courses 
offered by "Sponsors" are acceptable for PDH 
credit without scrutiny of individual course con- 
tent. 
(5) Renewal Period for Continuing Professional 
Education ; The period for accumulating the 
required PDH units shall be three years. 

Authority G.S. 89F-5. 

.0303 REQUIREME>rrS 

Every licensee shall obtain 45 PDH units during each 
three year period of licensing. If a licensee exceeds the 
required number of units in an^^ triennial period, a maxi- 
mum of 15 PDH units may be carried forward into the 
subsequent period. Selection of courses and activities which 
meet the requirements of Rule .0302(3) of this Section shall 
be the responsibility of the licensee. Licensees have the 
option of selecting courses other than those offered by 
sponsors. Post evaluation of courses offered by other than 
sponsors as defined in Rule .0302(4) of this Section may 
result in non-acceptance. PDH units may be earned as 
follows: 

Completion of college courses. 
Completion of continuing education courses. 
Completion of correspondence, televised, video- 
taped, audio taped, and other short 
courses/tutorials. 

(4) Presenting or attending seminars, in-house 
courses, workshops, or professional or technical 
presentations made at meetings, conventions or 
conferences. 

(5) Teaching or instructing in Items (1) through (4) of 
this Rule. 

(6) Authoring published papers, articles, or books. 

(7) Active participation in professional or technical 
societies. 



m 
m 
m 



(8} Patents. 



Authority G.S. 89F-5. 

.0304 UNITS 

The conversion of other units of credit to PDH units is as 
follows: 



m 

£2} 

m 



(4) 

£5} 
£6) 

m 



1 College or unit semester hour 15 PDH: 



\ College or unit quarter hour 10 PDH; 

1 Hour of professional development in course 

work, seminars, or professional or technical 

presentations made at meetings, conventions or 

conference \ PDH; 

For teaching in Items (1) ; (4} of this Rule. PDH 

credits are doubled*; 

Each published paper, article or book 10 PDH; 

Active participation in professional and technical 

society. (Each organization.) 2 PDH; 

Each patent 10 PDH. 



*Teaching credit is valid for teaching a course or 
seminar for the first time only. 

Authority G.S. 89F-5. 

.0305 DETERMINATION OF CREDIT 

The Board for Licensing of Soil Scientists shall have final 
authority with respect to approval of courses, sponsors, 
credit. PDH value for courses, and other methods of earning 
credit. PDH credits are not earned until the activity is 
completed or until the end of each year of service is 
completed. The following criteria will be used in determin- 
ing PDH credits: 

(1) Credit for college or community college courses 

will be based upon course credit established by 

the college. 

Credit for seminars and workshops, shall be based 

on one PDH unit for each hour of attendance. 



(2} 
£3} 



Attendance at programs presented at professional 
and technical society meetings shall earn PDH 
units for the actual time of each program with a 
maximum of j_5 for a given meeting. 

(4) Credit determination for published papers, articles 
and books and obtaining patents is the responsibil- 
ity of the licensee with final approval by the 
Board. 

(5) Credit for active participation in professional and 
technical societies (limited to 2 PDH per organi- 
zation), requires that a licensee serve as an officer 
or actively participate in a committee of the 
organization. PDH credits shall not be earned 
until the end of each year of service is completed. 

Authority G.S. 89F-5. 



.0306 RECORDKEEPING 

(a) Each licensee shall maintain records to be used to 
support credits claimed. Records required include, but are 
not limited to: 

(1) a log showing the type of activity claimed, spon- 
soring organization, location, duration, instruc- 
tor's or speaker's name, and PDH credits earned; 

(2) attendance verification records in the form of 
completion certificates, or other documents sup- 
porting evidence of attendance. 

(b) These records shall be maintained for a period of 
three years and copies may be requested by the board for 
audit verification purposes. 

Authority G.S. 89F-5. 

.0307 EXEMPTIONS 

A licensee shall be exempt from the continuing profes- 
sional development educational requirements for one of the 
following reasons: 

(1) A licensee serving on temporary active duty in the 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



525 



PROPOSED RULES 



armed forces of the United States for a period of 
time exceeding 120 consecutive days in a year 
shall be exempt from obtaining the continuing 
professional education hours required during that 
year. 

(2) Licensees experiencing physical disability (as 
defined in G.S. 168A). illness, or other circum- 
stances beyond the control of the licensee as 
reviewed and approved by the Board may be 
exempt. Supporting documentation shall be 
furnished to the Board. 

(3) Licensees uho list their occupation as "Inactive" 
on the renewal form and who further certify that 
they are no longer receiving any remuneration 
from providing professional soil services shall be 
exempt from the continuing professional education 
hours required. In the event such a person elects 
to return to active soil science practice, profes- 
sional development hours shall be earned in 
accordance with the requirements of Rule .0308 
in this Section before returning to active practice. 

Auihorin- G.S. 89F-5. 

.0308 REINSTATEMENT 

A licensee may bring an inactive license to active status 
by obtaining all delinquent PDH units and paying the 
restoration fee. However, if the total number required to 
become current exceeds 30. then 30 shall be the maximum 
number required. 

Authority G.S. 89F-5. 

SECTION .0400 - STANT)ARDS OF 
PROFESSIONAL CONDUCT 

.0401 CODE OF PROFESSIONAL CONDUCT 

(a) A soil scientist shall conduct his practice in order to 
protect the public health, safety and welfare. The soil 
scientist shall at all time recognize his primary obligation to 
protect the safety, health, and welfare of the public in the 
performance of his professional duties. 

(b) A soil scientist shall perform his services only in 
areas of h^s competence and: 

( 1) shall undertake to perform assignments only when 
qualified by education or experience in the spe- 
cific technical field of soil science involved^ 

(2) shall not affix his signature or seal to any docu- 



ment dealing ^ith subject matter to which he 
lacks competence by virtue of education or experi- 
ence, nor to any such plan or document not 
prepared under his direct supervisory control 
except that the soil scientist may affix his seal and 
signature to documents depicting the work of two 
or more professionals provided he designates by 
note under his seal the specific subject matter for 
which he is responsible. 



(c) A soil scientist shall issue public statements only in 
an objective and truthful manner and: 

(1) shall be completely objective and truthful in all 
professional reports, statements or testimony. He 
shall include relevant and pertinent information in 
such reports, statements or testimony. 

(2) when serving as an expert or technical witness 
before any court, commission, or other tribunal, 
shall express an opinion only when it is founded 
upon knowledge of the facts in issue, upon a 
background of technical competence in the subject 
matter, and upon honest conviction of the accu- 
racy and propriety of his testimony. 

(3) shall issue no statements, criticisms, or arguments 
on soil science matters connected with public 
policy which are inspired or paid for by an inter- 
ested party, or parties unless he has prefaced his 
comment by explicitly identif\'ing himself, by 
disclosing the identities of the parties on whose 
behalf he is speaking, and by revealing the exis- 
tence of any pecuniary interest he may have in the 
instant matters. 

(4) shall not attempt to injure, maliciously or falsely, 
directly or indirectly, the professional reputation, 
prospects, practice or employment of another soil 
scientist, nor shall he indiscriminately criticize 
another soil scientist's work in public. If he 
believes that another soil scientist is guilty of 
misconduct or illegal practice, he shall present 
such information to the proper authority for 
action. 

(d) A soil scientist shall avoid conflicts of interest and: 

(1) shall promptly inform his employer or client of 
any business association, interest, or circum- 
stances, which could influence his judgment or the 
quality of his services. 

(2) shall not solicit or accept financial or other valu- 
able considerations from material or equipment 
suppliers for specifying their products without full 
disclosure. 

(3) shall not solicit or accept gratuities, directly or 
indirectly, from contractors, their agents, or other 
parties dealing with his client or employer in 
connection with work for which he is responsible. 

(4) when in public service as a member, advisor, or 
employee of a governmental body or department, 
the soil scientist shall abstain from voting on 
matters involving services provided by him or his 
organization in private soil science practices. 

(5) shall not solicit or accept a contract from a gov- 
ernmental body on which a principal or officer of 
his organization serves as a member without full 
disclosure to affected parties. 

(6) shall not attempt to supplement another soil 
scientist in a particular employment after becom- 
ing aware that the other has been selected for the 
employment. 



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(e) A soil scientist shall solicit or accept work only on 
the basis of his qualifications and: 

(1) shall disclose to affected parties any payment, 
either directly or indirectly, any commission, 
political contribution, or a gift, or other consider- 
ation in order to secure work, exclusive of secur- 
ing salaried positions through employment agen- 
cies. 

(2) shall compete for professional employment on the 
basis of qualification and competence for proper 
accomplishment of the work. He shall not solicit 
or submit proposals for professional services 
containing a false, fraudulent, misleading decep- 
tive or unfair statement or claim regarding the 
cost, quality or extent of services to be rendered. 

(3) shall not falsify or permit misrepresentation of 
his, or his associates', academic professional 
qualification. He shall not misrepresent or exag- 
gerate his degree of responsibility in or for the 
subject matter of prior assignments. Brochures or 
other presentations incident to the solicitation of 
employment shall not misrepresent pertinent facts 
concerning employers, employees, joint ventures, 
or his or their past accomplishments with the 
intent and purpose of enhancing his qualifications 
and his work. 

£4} shall not knowingly associate with or permit the 
use of his name or firm name in a business 
venture by any person or firm which he knows. 
or has reasons to believe, is engaging in business 
or professional practices of a fraudulent or dis- 
honest nature. 
(5) if the soil scientist has knowledge or reason to 
believe that another person or firm may be in 
violation of any of these provisions or of the 
North Carolina Soil Scientist Licensing Act, he 
shall present such information to the Board and 
shall cooperate with the Board in furnishing such 
further information or assistance as may be 
required by the Board. 
(e) A soil scientist whose professional registration is 
revoked or suspended by another jurisdiction, shall be 
subject to disciplines by the Board if the registrant's actions 
violate G.S. 89F or the rules in this Chapter. Conviction of 
a felony without restoration of civil rights, or tlie revocation 
or suspension of the license of a soil scientist by another 
jurisdiction, if for a cause which in the State of North 
Carolina would constitute a violation of G.S. 89F or of 
these Rules, shall be grounds for a charge of violation of the 
rules in this Chapter. 

Authority G.S. 89F-17. 

.0402 RULES OF CONDUCT OF 
ADVERTISING 

(a) A soil scientist shall not make exaggerated, mislead- 
ing, deceptive or false statements or claims about his 



professional qualifications. exp)erience or performance in his 
brochures, correspondence . listings or other public commu- 
nications. 

{b} The prohibitions listed in Paragraph (a") of this Rule 
include, but are not limited to, the use of statements 
containing a material misrepresentation of fact or omitting 
a material fact necessary to keep the statement from being 
misleading; statements intended or likely to create an 
unjustified expectation; statements containing prediction of 
future success; or statements containing an opinion as to the 
quality of services. 

(c) Consistent with the foregoing, a soil scientist may 
advertise for recruitment of personnel. 

(d) Consistent with the foregoing, a soil scientist may 
prepare articles for the lay or technical press. Such articles 
shall not imply credit to the author for work performed by 
others. 

Authority G.S. 89F-17. 

SECTION .0500 - DISCIPLINARY ACTION 
AND PROCEDURE 

.0501 IMPROPER PRACTICE BY 
LICENSEE 

(a) Duty of the Board. When the Board becomes aware 
of an alleged violation, it shall send a "letter of inquiry" to 
the soil scientist allegedly involved and to the complainant. 
The soil scientist shall reply to this and any other inquiry of 
the Board within 30 calendar days. Failure to respond will 
constitute violation of the rules in this Chapter. After 
receiving and considering the response from the soil 
scientist, the Board may send additional letters of inquiry to 
the soil scientist and other persons allegedly involved. 

(b) Findings of tlie Board. Upon consideration of 
responses to inquiries, the Board shall determine what action 
shall be taken: 



m 



(2} if tlie 



if the Board determines that no disciplinary action 
is necessary, all parties previously contacted shall 
be so informed; 

if tlie Board determines that the infraction is 
deemed minor, then the licensee may be offered 
a "letter of warning". TTiis "letter of warning" 
shall note the licensee's acceptance of such action 
by the Board and shall specify the Board's cause 
for concern. Other persons previously contacted 
shall be informed that the Board has acted upon 
the matter; 

if the Board determines that a formal hearing 
should be held. G.S. 150B is applicable; 
if tlie Board determines that another person 
allegedly involved is licensed by the State, rele- 
vant information shall be sent by letter to the 
respective professional board. 



Authority G.S. 89F-5; 89F-18; 89F-20; 89F-22. 



(3) 
£41 



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527 



TEMPORARY RULES 



Tlie Codifier of Rules has entered the following temporary rule(s) in the North Carolina Administrative Code. 
Pursuant to G.S. 150B-21. 1(e), publication of a temporary rule in the North Carolina Register serves as a 
notice of rule-making proceedings unless this notice has been previously published by the agency. 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 

Rule-making Agency: Social Services Commission 

Rule Citation: 10 NCAC 41 P .0002, .0005, .0006, .0008, 
.0009. .0010, .0011 and .0012 

Effective Date: July 1, 1996 

Findings Reviewed by Julian Mann, HI: Approved 

Authority for the rule-making: G.S. 48 

Reason for Proposed Action: Jlie 1995 General Assembly 
found it in the public interest to clarify the judicial process 
for adoptions to promote the integrity and finality of adop- 
tions, and to encourage prompt, conclusive dispositions of 
adoption proceedings. Toward this end, SB 159 was 
ratified. Tliis action included rewriting many of the adop- 
tion laws contained in G. S. 48. The amendments proposed 
to 10 NCAC 41 P will provide for implementation of those 
changes. 

Comment Procedures: A/iyone wishing to comment should 
contact Shamese Ransoine, Special Assistant to the Director, 
North Carolina Division of Social Services, 325 N. Salisbury 
St., Raleigh, NC 27603 , (919) 733-3055. 

CHAPTER 41 - CHILDREN'S SERVICES 



SUBCHAPTER 41P 
AGENCIES: 



- CHILD-PLACING 
ADOPTION 



.0002 ORGANIZATION AND ADMINISTRATION 

(a) Persons licensed or seeking license to provide 
adoption services shall comply with administrative and 
organizational requirements of 10 NCAC 41N, Chapter 48 
of the General Statutes of North Carolina, and G.S. 
110-57.1 et seq. 

(b) Persons licensed or seeking license to provide 
adoption services shall meet staffing regulations set forth in 
10 NCAC 410, except that the executive director employed 
after the effective date of these regulations shall have a 
masters degree in social work or related area of study from 
an accredited school, and at least four years of experience 
in a child-placement agency, at least two of which must 
have been in administration. 

(c) The caseload of social workers providing adoption 
services must be limited to allow for the required contacts 
with biological parents and families, children, adoptive 
families and collateral parties. A case is defined as any of 



the following: 

(1) an expectant parent or parents receiving problem 
pregnancy services from the agency prior to the 
child's birth and r e l e as e relinquishment for adop- 
tion; 

(2) biological parents receiving services from the 
agency following releas e relinquishment of the 
child to the agency for adoption; 

(3) a child or sibling group to be placed together 
referred to the agency for adoptive placement 
from another hcensed or authorized child-placing 
agency and for whom an adoption home is being 
sought and considered; 

(4) a child, or siblings, together with biological 
parents for as long as the legal parent and child 
relationship exists; 

(5) a child, or siblings for whom the goals for adop- 
tion are the same, following reloaso relinquish- 
ment for adoption; 

(6) a single person or married couple applying for or 
licensed to provide foster care for children re- 
leased for adoption to the agency; 

(7) a single person or married couple applying for or 
approved for adoptive placement of a child or 
children; 

(8) a child or sibling group and adoptive parents after 
placement occurs; and 

(9) biological parents, or adoptive parents and 
adopted child, or adopt adoptee following entry of 
the final order for adoption decree of adoption . 

History Note: Authority G.S. 13 ID- 10. 3; 131D-10.5; 

143B-153; 48-3-204; 

Ejf. February 1, 1986; 

Amended Eff. June 1, 1990; 

Temporary Amendment Eff. July 1 , 1996. 

.0005 PLACEMENT SERVICES TO FAMILIES 
AND CHILDREN 

(a) Persons licensed or seeking license to provide 
adoption services shall comply with regulations set forth in 
10 NCAC 410. 

fb) AdditionaUy, those persons providing as part of their 
adoption services program problem pregnancy services 
shall: 

(1) respect the client's prerogative for choice of 
alternatives to the problem pregnancy; 

(2) assure the clients of confidential handling of and 
restricted access to the case record; 

(3) offer alternate plans of care for the child and give 
supportive services or make appropriate referrals 
to other resources, should the client elect to keep 
the child in the family instead of releasing the 



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TEMPORARY RULES 



child for adoption; and 
(4) assist the client in obtaining maternity home care 
during her pregnancy, if desired and appropriate. 

(c) The agency shall help those parents reaching the 
decision to roloaso relinquish their children to the agency for 
adoptive placement to have a thorough understanding of the 
meaning of adoption and its potential impact on the child's 
and their lives. The agency may notify the parent when a 
placement has occurred and when an adoption decree is 
issued. 

(d) At the point a parent executes the writt e n r e l e ae e , 
s urrender, and goncml conocnt to adopt, relinquishment for 
adoption, the agency shall ascertain that the parent has a 
thorough understanding of the effects of this action and of 
the time period allowed for revocation of the r e l e as e , 
surrondcr, and general conacnt to adoption, relinquishment 
for adoption. When the agency has received the parent's 
roloaso, surrend e r, and g e neral oonsont to adoption, relin- 



considorod — m — determining — the — most — auitablo — adoptive 
plac e m e nt, but the agonoy shall not prohibit th e placement 
of a child for adoption with person s of a diff e r e nt race or 
ethnic Gatogor>'. An agency may consider the cultural. 



quishment for adoption, the executive director or administra- 
tor must indicate acceptance of the parent's roloaso relin- 
quishment document by signing the appropriate form for this 
purpose. A copy of the parent's rol e as e , surr e nder, and 
goneral consent to adoption relinquishment for adoption and 
of the agency's acceptance must be given to the parent. The 
Director or Administrator shall designate the agency's 
supervisor of adoptions or the adoptions social worker 
handling the case to accept the par e nt's releas e , surr e nd e r, 
and general conitont to adoption relinquishment for adoption 
in the event the Director or Administrator will not be 
available to perform this task in person. An agency may 
acquire legal and physical custody of a minor for purposes 
of adoptive placement only by means of a relinquishment 
pursuant to G.S. 48. Article l^ Part 7 or by terminating the 
rights and duties of a parent or guardian of the minor. 

(e) In addition to providing services to the child in 
compliance with 10 NCAC 410, agencies providing 
adoption services shall involve a child in the selection of an 
adoptive home and in preparation for adoptive placement, as 
is appropriate to the age of the child. 

History Note: Authority G.S. 131D-10.5; 143B-153; 48-3- 

204; 

Ejf. February 1, 1986; 

Amended Eff. June 1, 1990; 

Temporary Amendment Eff. July 1 , 1996. 

.0006 ADOPTIVE HOME RECRUITMENT 

The agency shall have a written plan for on-going 
recruitment of adoptive homes for the children it places or 
plans to place for adoption. The plan must include re- 
sources to be used, time-related goals for applicant recruit- 
ment, and any limitations or restrictions that may be 
inherent to its program. The plan must indicate designated 
staff and funding sources for implementation of the plan. 
Agencies shall have a plan which actively recruits homes of 
the same race or ethnic category as that of the children it 
serves. A child's race and ethnic background must bo 



ethnic, or racial background of the child and the capacity of 
the prospective adoptive parents to meet the needs of a child 
as one of the number of factors used to determine the best 
interest of the child but shall not delay or deny placement of 
a child for adoption solely on the basis of race, color, or 
national origin of the adoptive parent or the child. 

History Note: Authority G.S. 13 ID- 10.5; 143B-153; 48-3- 

204; 

Eff. February 1, 1986; 

Amended Eff. March 1. 1992; 

Temporary Amendment Eff. July 1, 1996. 

.0008 PREPLACEMENT ASSESSMENT 

(a) The agency shall conduct an adoptive study with it s 
applicants, a preplacement assessment within 90 days after 
the request has been accepted. The study assessment 
process must include at least one offic e visit with th e 
adoptiv e applicants, ono hom e visit, and personal interview, 
and separate face-to-face interviews with each member of 
the household above six years of age. The s tudy assessment 
process must be a joint effort of the adoption agency and the 
applicants to determine the kind of child the applicants can 
best parent. Any s tudy assessment that was completed one 
year or more before placement of a child occurs must be 
updated to include current information about the family. 
Th e updat e d study shall focu s on applicabl e — items in 
Paragraph (b) of this Rule whoro change could bo expected 
to have occurrod. Physical examinations of family members 
must be current to within 12 months of the updat e d study 
assessment . 

fb) The agency shall study assess the following areas and 
shall record the information in the adoptive applicants' 
record: 

(1) the applicants' motivation for adoption; reasons 
for wanting to adopt; 

(2) the strengths and woolcnossos needs of each 
member of the household; 

(3) the attitudes and feelings of the family, extended 
family, and significant others involved with the 
family toward accepting adoptive children, and 
parenting children not bom to them; 

(4) the attitudes of the applicants toward the biologi- 
cal parents and in regard to the reasons the child 
is in need of adoption; 

(5) the applicants' attitudes toward child behavior and 
discipline; 

(6) the applicants' plan for discussing adoption with 
the child; 

(7) the emotional stability and maturity of applicants; 

(8) the applicants' ability to cope with problems, 
stress, frustrations, crises, and loss; 

(9) the applicants' ability to give and receive affec- 



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529 



TEMPORARY RULES 



tion; 

(10) the applicants' child-caring skills and willingness 
to acquire additional skills needed for the child's 
development; 

(11) the applicants' ability to provide for the child's 
physical and emotional needs; 

(12) the applicontG' record of criminal convictions; 
whether the applicant has ever been convicted of 
a crime other than a minor traffic violation; 

(13) the adjustment strengths and needs of birth chil- 
dren or previously adopted children, including 
school reports, if applicable ; 



functioning of any children in the household. 
When any of the information listed in this Paragraph is 
not reasonably available, the preplacement assessment shall 
state why the information is unavailable. 

(c) The adoptive homo study assessment must be pre- 
pared and typed for review by the agency's adoption review 
committee, and it must become part of the applicants' 
permanent record. 

(d) Narrative dictation during the provisional period of 
lic e nsur e must b e r e cord e d — by ag e ncy — staff providing 
probl e m pr e gnancy s e p - 'ic e s, conducting adoptive studi e s, 
ftftd — providing post placement — Bcrviocs — following each 



(14) report of a physical examination by a licen s ed contact with the child, biological parents, and adoptive 



medical provider for m e mb e rs of the adoptiv e 
family living in the hous e hold within s ix month s 
of the study that verifies no communicable dis 
ease, specific illness, or disabilities that would 
interf e r e with th e family's abiliti e s to par e nt a 
child pos e a dir e ct thr e at to a child — which may 
po s e a significant risk of transmission in the 
hom e ; the applicant's physical and mental health, 
including any addiction to alcohol or drugs: 

(15) th e applicants' ability to provid e financially for 
the child or children to be adopted with or without 
agency — financial — assistance — through — adoption 
subsidy; current financial information provided by 
the applicant, including property and income; 

(16) the applicants' personal character references; 

(19) the plan for child care if parents work; and 

(20) recommendations for adoption in regard to the 
number, age, sex, characteristics, and special 
needs of children who could be best served by the 
family; 

(21) any previous request for an assessment or involve- 
ment in an adoptive placement and the outcome of 
the assessment or placement; 

(22) whether the individual has ever been a respondent 
in a domestic violence proceeding or a proceeding 
concerning a minor who was allegedly abused, 
neglected, abandoned, or delinquent, and the 
outcome of the proceeding; 

(23) whether the applicant has located a parent inter- 
ested in placing a child for adoption with the 
applicant, and a brief, non identifying description 
of the parent and the child; 

(24) the applicants' age, date of birth, nationality, race 
or ethnicity, and any religious preference; 

(25) the applicant's marital and family status and 
history, including the presence of any children 
bom to or adopted by the applicant, and any other 
children in the household; 

(26) the applicant's educational and employment 
history and any special skills; and 

(27) any additional fact or circumstance that may be 
relevant to a determination of the applicant's 
suitability to be an adoptive parent, including the 
quality of the home environment and the level of 



par e nts and this dictation must b e com e part of th e p e rma - 
n e nt r e cord . Once the agency has made a decision regarding 
the suitability of the applicant as an adoptive placement, the 
preplacement assessment shall include specific documenta- 
tion of the factors which support that determination. If the 
agency determines that the applicant is not suitable to be an 
adoptive parent, the assessment shall include specific 
documentation of the factors which support that determina- 
tion. 

History Note: Authority G.S. J 3 ID- J 0.5; MSB- 153; 48-3- 

303; 48-2-502; 

Eff. February 1, 1986; 

Amended Eff. August 1, 1993; March 1, 1992; June 1, 

1990; 

Temporary Amendment Eff. July 1 , 1996. 

.0009 NOTinCATION REGARDD>JG 

PREPLACEMENT ASSESSMENT 

(a) The agency shall notify applicants in writing within 
30 days of completion of the adoptiv e study preplacement 
assessment of the acceptance or denial or their application. 

(b) When applicants are not accepted, the agency shall 
share with them the reasons a child cannot be placed in their 
home. The agency shall off e r s e rvices to th e applicants to 
assist th e m in adjusting to th e d e cision. 

(cj If the applicant disagrees with the unfavorable 
preplacement assessment, the applicant may request an 
internal review by the agency director. 

(d) The applicant, after exhausting the agency's proce- 
dures for internal review, may prepare and file a written 
response with the Division of Social Services and the 
agency. TTie Division shall acknowledge receipt of the 
response within 30 days, but shall have no authority to take 
any action with respect to the response, A copy of the 
response shall be attached to the unfavorable assessment. 

(e) Following an unfavorable preplacement assessment 
being filed with the Division, the county department of 
social sen-'ices shall be notified by the Division, and shall 
take appropriate action regarding any child placed in the 
home of the prospective adoptive parent who js the subject 
of the unfavorable assessment. 

(f) An unfavorable preplacement assessment and any 
response filed with the Division under this section shall not 



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TEMPORARY RULES 



be public records as set forth in G.S. 132. 

History Note: Authority G.S. 131D-10.5; 143B-153; 48-3- 

303; 

Eff. February 1, 1986; 

Temporary Amendment Eff. July 1, 1996. 

.0010 SERVICES TO ADOPTIVE APPLICANTS 
AND FAMILIES 

(a) Tho agonoy ohall provid e o e P i 'io e o to adoptive appli 
canto to aooiot th e m in making an informed d e cision about 
adoption. Tho agency shall provide tho opportunity for the 
applicants to participate in tho adoptive study and in the 
assoDcmont of their pot e ntial for m ee ting tho needs of th e 
childr e n availabl e for adoption. TTie agency shall provide 
upon request a written statement of the services it provides 
and of its procedure for selecting a prospective adoptive 
parent for a child, including the role of the child's parent or 
guardian in the selection process. This statement must 
include a schedule of any fees or expenses charged by the 
agency and a summary of the provisions of G^ S^ 48 that 
pertain to the requirements and consequences of a relin- 
quishment and to the selection of a prospective adoptive 
parent. 

(b) The agency shall discuss the children potentially 
available for adoption with the adoptive applicants The 
selection of a prospective adoptive parent for a minor shall 
be made by the agency, and based on the preplacement 
assessment. The selection may be based on critena re- 
quested by a parent who relinquishes the child to the 
agency. 

(c) Following completion of an approved adoptive study. 
a preplacement assessment, the agency shall prepare the 
adoptive applicants for the placement of a particular child. 
Preparation must include: 

(1) information about the needs and expectations of 
the child and of the adoptive family; 

(2) information to the extent allowed by law as 
specified in G.S. 4S-35 48-3-205 about the child's 
background and the health history of the child's 
biological parents and other relatives; and 

(3) visits with the child prior to placement. 

(d) The agency worker shall visit in the home of the 
adoptive family at least quarterly after the placement of a 
child and prior to the final order of adoption, decree of 
adoption. The first visit must occur within two weeks after 
placement. Frequency of visits thereafter mu s t shall be 
determined by the child's and family's needs. Observations 
made during the visits must shall be used in making recom- 
mendations to the court of adoptions in regard to the 
int e rlooutor>' d e cr ee and final ord e r, decree of adoption, or 
in regard to dismissal of the adoption petition. 

(e) 'When applicable, the agency shall take steps neces- 
sary to assure that the adoptive placement comes into 
compliance with the interstate compact on the placement of 
children. 

(f) The agency shall make post-adoption services avail- 



able to the adoptive parents, the biological parents, and the 
adoptee after the final order decree of adoption has been 
entered. 

History Note: Authority G.S. 48-1 et. seq.; 110-57.1; 

131D-10-5; 143B-153; 48-3-204; 

Eff. February 1, 1986; 

Temporary Amendment Eff. July 1 , 1996. 

.0011 LEGAL PROCESS 

(a) The agency shall instruct the adoptive parents in 
procedures regarding the legal process for adoption and 
shall encourage instruct them to file their adoption petition 
soon aft e r plac e m e nt occurs within 30 days . 

(b) TTie agency shall prepare and file the required 
consents and other legal documents and reports with the 
court of adoptions at the appropriate times once the adoption 
petition has been filed. 

(c) During the process of preparing court reports, the 
petitioner, and each member of the petitioner's home shall 
be interviewed in the petitioner's home. In addition, at least 
one interview shall be conducted in the presence of the 
petitioner and the adoptee to observe interactions between 
the them. TTie report to the court must be in writing and 
contain the information required by G.S. 48-2-502(b). 

(d) The agency shall give the petitioner a copy of each 
report filed with the court, and retain a copy, except, 
pursuant to G.S. 48-10-105. the agency shall not release to 
the petitioner a copy of any court order, judgment, decree. 
or pending legal proceeding containing identifying informa- 
tion. 

History Note: Authority G.S. 48-1 et.seq.; 131D-10.5; 

143B-153; 48-2-502; 

Eff. February I, 1986; 

Temporary Amendment Eff. July I, 1996. 

.0012 RECORDS 

(a) The agency shall maintain children's and biological 
parent's records in accordance with R e gulations rules set 
forth in 10 NCAC 410. 

(b) The agency shall keep separate records for each 
adoptive applicant and family. These records must contain 
the following: 

(1) application form; 

(2) copies of marriage certificates, if applicable; 

(3) documentation of marriage termination, if applica- 
ble; 

(4) current medical records on all family members 
and psychological or psychiatric reports, if appli- 
cable; 

(5) references from at least three sources; 

(6) adoptive s tudy preplacement assessment conducted 
by the agency; 

(7) copies of correspondence to, from, and in regard 
to the applicants; 

(8) summary and dates and content of contacts prior 



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531 



TEMPORARY RULES 



to and following approval for adoption until the 

final ord e r decree of adoption is entered; 
(9) copies of information given to the applicant and 

family concerning the child or children to be 

placed for adoption with them; 
(lOj copies of all legal documents pertaining to the 

adoption; and 
fll) summary containing the placement decision, pre- 

placement and post-placement contacts with the 

family and child. 

(c) In the event the applicants were not accepted or did 
not have a child placed with them, the record shall contain 
a narrative clearly indicating the reasons and the manner in 
which the decision was presented to the applicants. 

(d) All Individual child and adoptive family records shall 
be permanently retained by the agency. If necessary, the 
files must be microfilmed in accordance with provisions of 
G.S. 8-45.1, following which the original files must be 
destroyed by an authorized shredding process. 

(e) All child and adoptive applicant and family records 
must be kept in securely locked quarters and information 
from the files may shall be divulged only in compliance with 
provisions of G.S. 18 25. G.S. 48-9-105. 

History Note: Authority G.S. 131D-10.5; 143B-153; 48-3- 

303: 

Eff. February 1, 1986; 

Temporary Amendment Eff. July 1 , 1996. 



±i<H<^^^^^^## 






Rule-making Agency: Department of Human Resources 

Rule Citation: 10 NCAC 41 P .0013 

Effective Date: July 1, 1996 

Findings Reviewed by Julian Mann, III: Approved 

Authority for the rule-making: G.S. 48-2-504; 48-3-304 



SUBCHAPTER 41P - CHILD-PLACING AGENCIES: 
ADOPTION 

.0013 FEES 

(a) County departments of social services may charge 
reasonable fees for the preparation of a preplacement 
assessment or report to the court in accordance with G.S. 
48-3-304(a) and G.S. 48-2-504(31. No fee shall be charged 
except pursuant to a written fee agreement which must be 
signed by the parties to be charged prior to the beginning of 
the preparation. Tlie fee agreement shall not be based on 
the outcome of the report or the adoption proceeding. 

(b) Maximum fees for the preparation of the reports shall 
not exceed: 

(1) One diousand five hundred dollars ($1500) for the 
preplacement assessment and report to the court: 
and 

{2} Two hundred dollars ($200) for report to the 
court only. 

(c) No fee shall be charged when one or more of the 
following circumstances exists: 

(1) TTie head of household for the prospective adop- 
tive family is an AFDC or SSI recipient; 

(2) The family unit's income is below the State's 
Estabhshed Income (or 150% of the 1992 Federal 
Poverty Level); or 

(3) The family has identified an adoptee who is in the 
custody and placement responsibility of the De- 
partment of Social SeAJces, and provided that the 
adoptive family continues to pursue the adoption 
of the identified child. 

(d) Fees for the above reports may be reduced or waived 
if it can be documented in the case record that the prospec- 
tive adoptive family cannot pay the required fee, or if other 
reasons exist that would result in the fee becoming a barrier 
to the adoption. Unless reduced or waived, the entire fee 
shall be paid in accordance with local policy. 

History Note: Authority G.S. 48-2-504; 48-3-304; 
Temporary Adoption Eff. July 1 , 1996. 



Reason for Proposed Action: The 1995 General Assembly 
found it in the public interest to clarify the judicial process 
for adoptions to promote the integrity and finality of adop- 
tions, and to encourage prompt, conclusive dispositions of 
adoption proceedings. Toward this end, Senate Bill 159 was 
ratified. Tliis action included rewriting many of the adop- 
tion laws contained in G.S. 48. Tlie adoption of this 
proposed rule will provide for implementation of these 
changes. 

Comment Procedures: .Anyone wishing to comment should 
contact Sliamese Ransome, Special Assistant to the Director, 
Division of Social Services, 325 N. Salisbury St. , Raleigh, 
NO 27603, 919/733-3055. 

CHAPTER 41 - CHILDREN'S SERVICES 



Rule-making Agency: Social Services Commission 

Rule Citation: 10 NCAC 49a .0002; 49B .0202, .0310 and 
.0502 

Effective Date: July 1, 1996 

Findings Reviewed by Julian Mann, HI: Approved 

Authority for the rule-making: G.S. 108A-25, 143B-153 

Reason for Proposed Action: Tliese rules are needed to 
implement prospective budgeting and quarterly reporting in 
the Aid To Families With Dependent Children (AFDC) 



532 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



TEMPORARY RULES 



Program. 

Comment Procedures: Anyone wishing to comment on 
these proposed rules should contact Shamese Ransome, APA 
Coordinator, Social Services Commission, NC Division of 
Social Services, 325 N. Salisbury St., Raleigh, NC 27603, 
(919) 733-3055. 

CHAPTER 49 - AFDC 

SUBCHAPTER 49A - GENERAL PROGRAM 
AD\UNISTRAT10N 

.0002 DEFINITIONS 

The following definitions apply to this Chapter: 

(1) "Adjusted Payment" means a payment to the 
recipient to correct a county-responsible under- 
payment. 

(2) "Appeal" means an oral or written request from 
a client for a hearing to review the action of a 
county Department of Social Services when the 
client is dissatisfied with the decision in his case. 

(3) "Application Process" means a series of actions 
beginning with a signed application and ending the 
date a check or demal notice is mailed. 

(4) "Assistance Unit" means the total number of 
persons whose needs are considered m determin- 
ing the payment amount. 

(5) "Budget Unit" means all those persons for whom 
application has been made plus anyone in the 
home who is liable for the support of a member 
of the assistance unit or whose income is counted 
as available to the assistance unit. 

(6) "Client" means member of the assistance unit. It 
may be used interchangeably with payee, recipient 
and applicant. 

(7) "Collateral" means a person or organization that 
can substantiate or verify information necessary to 
establish eligibility. 

(8) "Determination" means the process of verifying 
eligibility factors for persons applying for AFDC. 

(9) "Disregard of Earned Income" means the proce- 
dure for exempting certain portions of earned 
income as a resource when determining the 
amount of payment. 

(10) "Effective Date" means the date for which the 
benefit is authorized. 

(11) "Eligibility, Initial" means the state of eligibility 
at time of application. 

(12) "Essential Person" means a person who gives an 
essential service to a client, and, if in need, is 
eligible to be included in the assistance unit. 

(13) "Excluded Income" means money received by a 
member of the budget unit which is not counted in 
determining eligibility for assistance. 

(14) "Father, Alleged" means the man who is said 
without proof to be the father of a child. This 



includes a father who has admitted paternity when 
paternity has not been established In a court of 
law. 

(15) "Father, Legal" means: 

(a) The man who is married to the mother of 
child at the time of birth of the child, 
regardless of whether they are living to- 
gether. The legal father is not necessarily 
the natural father, but is legally responsible 
for support; or 

(b) A man who has been determined by the 
court to be the father of the child through 
a paternity suit or by act of legitimation; or 

(c) A man who has legally adopted the child. 

(16) "Father, Natural" means the biological father of 
the child. He may be the alleged or legal father. 

(17) "Full-Time Student" means a student so desig- 
nated by the school in which he is enrolled. 

(18) "Minor Mother" means a mother who is under the 
age of 18 who may be payee for an assistance unit 
or a recipient included in another assistance unit. 

(19) "Needy Spouse" means the husband or wife of a 
specified relative (other than a parent) who is 
ehgible to be mcluded m the assistance unit if he 
applies for assistance and meets the requirements 
of an essential person. 

(20) "Payee" means the person in whose name the 
AFDC payment is made. 

(21) "Payment Month" means the month for which the 
payment is made. 

(22) "Prospective Budgeting" means the best estimate 
of income in the payment month. Use when 
d e t e rmining b e n e fits for th e first two payment 
months. 

(23) "Reapplication" means a subsequent application 
when a case has been terminated or suspended. 

(24) "Recipient" means an eligible person whose needs 
are included in the assistance payment. 

(25) "Remainder Interest" means property which will 
be inherited in full at a life estate interest holder's 
death. 

(26) "Revocable Trust" means funds held in trust 
which are available for the client's use. 

(27) "Verification" means the confirmation of facts and 
information used in determining eligibility. 

History Note: Authority G.S. 108A-25; 143B-153; 45 

C.F.R. 233; 

Eff. February 1. 1984; 

Amended Eff. June 1, 1990; August 1, 1988; February I, 

1986; 

Temporary Amendment Eff. July 1, 1996.. 

SUBCHAPTER 49B - ELIGIBILITY 
DETERMINATION 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



533 



TEMPORARY RULES 



SECTION .0200 - APPLICATION PROCESS 

.0202 CSflTIAL INTERVIEW 

The applicant shall be allowed to have any person(s) of 
his choice participate in the interview. The applicant shall 
be informed of the following: 

(1) He must provide: 

(a) the names of collaterals, such as landlords, 
employers, and others with knowledge of 
his situation; 

(b) information about his resources; 

(c) verification of his earned income and any 
operational expenses; 

(d) his Social Security number unless he has 
lost his card; 

(e) medical forms when appropriate; 

(f) work registration card from ESC; 

(g) statement from a dealer when verified 
equity of a motor vehicle is disputed; 

fh) evidence of good cause claim for non- 
cooperation with the child support enforce- 
ment agency; 

(i) verification of the amount of a lump sum 
payment and other required information 
regarding the lump sum; 

(j) verification of stepparent's income and 
verification of income of a minor parent's 
parent or legal guardian; and 

(k) signed statement from a doctor or medical 
facility substantiating a pregnancy and the 
expected due date. 

(2) It is the county's responsibility to use collateral 
sources to substantiate or verify information 
necessary to establish eligibility. Collateral 
sources of information include knowledgeable 
individuals, business organizations, public re- 
cords, and documentary evidence. If the appli- 
cant does not wish necessary collateral contacts to 
be made, he can withdraw the application. If he 
denies permission to contact necessary collaterals, 
the application shall be rejected due to failure to 
cooperate in establishing eligibility. 

(3) A worker will visit his home at the county's 
option. The county's decision to make a home 
visit will be based on error-prone characteristics 
defined by the state using quality control and 
other management data. 

(4) The applicant has the right to: 

(a) receive assistance if found eligible; 

(b) be protected against discrimination on the 
grounds of race, creed, or national origin 
by Title VI of the Civil Rights Act of 
1964. He may appeal such discrimination; 

(c) spend his assistance payment as he wishes, 
but it must be in his best interest and that 
of his family. A substitute payee may be 
appointed for those individuals who cannot 



manage the payments; 

(d) receive his monthly check Ln advance until 
the payment is terminated by appropriate 
action; 

(e) have any information given to the agency 
kept in confidence; 

(f) appeal, if his assistance will be denied, 
changed or terminated, his payment is 
incorrect based on the agency's interpreta- 
tion of state regulations, or his request for 
a change in the amount of assistance was 
delayed beyond 30 days or rejected; 

(g) reapply at any time, if found inehgible; and 
(h) withdraw from the assistance program at 

any time. 
(5) The applicant's responsibilities. He must: 

(a) provide the county department, state and 
federal officials, the necessary sources 
from which the county department can 
locate and obtain information needed to 
determine eligibility; 

(b) report to the county department of social 
services any change in situation that may 
affect eUgibility for a check within five 10 
calendar days after it happens, he learns of 
the change. The meaning of fraud shall be 
explained. The applicant shall be informed 
that he may be suspected of fraud if he 
fails to rejxirt a change in situation and that 
is such situations, he may have to repay 
assistance received in error and that he may 
also be tried by the courts for fraud; 

(c) inform the county department of social 
services of any person or organization 
against whom he has a right to recovery. 
When he accepts medical assistance (in- 
cluded with any AFDC), the applicant 
assigns his rights to third party insurance 
benefits to the state. He shall be informed 
that it is a misdemeanor to fail to disclose 
the identity of any person or organization 
against whom he has a right to recovery; 

(d) immediately report to the county depart- 
ment the receipt of a check which he 
knows to be erroneous, such as two checks 
for the same month,, or a check in the 
wrong amount. If he does not report such 
payments, he may be required to repay any 
overpayment. 

History Note: Authority G.S. 108A-43; 143B-153; 45 

C.F.R. 206.10; 

Eff. February 1, 1984; 

Amended Eff. June 1, 1990; February 1, 1986; 

Temporary Amendment Eff. July 1 , 1996. 

SECTION .0300 - ELIGIBILITY FACTORS 



534 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



TEMPORARY RULES 



.0310 PROSPECTIVE BUDGETING AlVD 
QUARTERLY REPORTC^JG 

In addition to th e r e quiromonto found in '15 CI^ 233.3 6 
which is hereby adoptod by rcforcnco under G.S. 150B 
1 4 (c). monthly reporting shall bo required on other error 
pron e claso e o of recipi e nts as d e fined by th e stat e bas e d on 
qualit)' control and oth e r manag e m e nt data. 

(a) Income shall be budgeted prospectively for determin- 
ing eligibility for and the amount of AFDC payments. To 
arrive at a monthly amount to consider, the following 
processes shall be followed. 

(1) For income that is paid on less than a monthly 
basis, the ga}£ received from each period during a 
month shall be averaged and converted to a 
monthly amount as follows. Averaged pay shall 
be multiplied by: 

(A) 2 if pay is received twice per month 

(B) 2.15 if pay is received every two weeks 
(O 4.3 if pay is received weekly 

(2) For income that is received once per month, the 
amount received from two previous successive 
months shall be averaged to arrive at one monthly 
amount. 

(3) Annualized self-employment income shall be 
averaged over the lesser of the following period 
the number of months the business has been in 
operation or \2 months. 

(b) The monthly income calculated in Paragraph (a) of 
this Rule shall be used to determme the AFDC payment for 
3 consecutive calendar months. 

(c) Quarterly reporting shall be required for error-prone 
classes of recipients as defined by the state based on quality 
control and other management data. The quarterly reporting 
process shall follow the processing requirements found in 45 
CFR 233.37 which is hereby incorporated by reference 
including all subsequent amendments and editions. Copies 
of this Code of Federal Regulations may be obtained from 
the Division of Social Services, 325 North Salisbury Street, 
Raleigh, N. C. 27603 (telephone number (919) 733-3055 at 
a cost often cents ($.10) per page at the time of adoption of 
this Rule. 

(d) AFDC families shall be required to report all changes 
within 10 calendar days after they become aware a change 
has occurred. 

History Note: Authority G.S. 143B-153; 45 C.F.R. 

233.28; 45 C.F.R. 233.36; 

Eff. February 1, 1984; 

Amended Eff. August 1. 1988; February 1. 1986; 

Temporary Amendment Eff. July 1 , 1996. 

SECTION .0500 - REDETERMINATION OF 
ELIGIBILITY 

.0502 CHANGES IN SITUATION 

(a) Each client shall be required to report any change in 
his situation within #ve _10 calendar days after it occurs, he 



learns of the change. 

(b) The change shall be evaluated and appropriate action 
effective as early as the next month but never later than two 
months following the date the change is reported. 

History Note: Authority G.S. 143B-153; 45 C.F.R. 

206. 10; 

Eff. February 1, 1984; 

Amended Eff. June 1, 1990; February I, 1986; 

Temporary Amendment Eff. July 1, 1996. 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



535 



APPROVED RULES 



This Section includes the Register Notice citation to Rules approved by the Rules Review Commission (RRC) at its 
meeting of June 20. 1996 pursuant to G.S. 150B-21. 17(a)(1) and reported to the Joint Legislative Administrative 
Procedure Oversight Committee pursuant to G.S. 150B-21.16. The full text of rules are published below when the 
rules have been approved by RRC in a form different from that originally noticed in the Register or rules which notice 
in the Register was not required. The rules published infill text are identified by an * in the listing of approved 
rules. 



APPROVED RULE CITATION 



REGISTER CITATION TO THE 
NOTICE OF TEXT 



15A NCAC 18A .2701 * 



Not Required, G.S. 150B-21.5 



TITLE ISA - DEPARTMENT OF ENVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 

CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A - SANITATION 

SECTION .2700 - SANITATION OF MEAT 
MARKETS 

.2701 DEFEVmONS 

The following definitions shall apply throughout this 
Section: 

(1) "Approved" means determined by the Department 
to be in compliance with this Section. Food 
service equipment which meets National Sanita- 
tion Foundation Standards or equal shall be 
considered as approved. National Sanitation 
Foundation standards are adopt e d incorporated by 
reference in accordance with G.S. 150B H(o). 
including subsequent amendments and editions. 
These standards may be obtained from the Na- 
tional Sanitation Foundation, P.O. Box 1468, Ann 
Arbor, Michigan '1 8 106 48106, at a cost of four 
hundred and fifty dollars ($450.00^, and are also 
available for inspection at the Division of Envi- 
ronmental Health. Food which complies with 
requirements of the North Carolina Department of 
Agriculture or United States Department of 
Agriculture and the requirement of this Section 
shall be considered as approved. 

(2) "Department" means the North Carolina Depart- 
ment of Environment, Health, and Natural Re- 
sources. TTie term also means the authorized 
representative of the Department. 

(3) "Employee" means any person who is employed 
in the handling or processing of meat, meat food 
products, poultry, or poultry products, or in the 
cleaning of utensils or equipment. 

(4) "Local Health Director" means the administrative 
head of a local health department or his autho- 
rized representative. 



(5) "Meat" and "meat food products" mean meat and 
meat food products as defined in G.S. 
106-549.15(14). 

(6) "Meat market" means a meat market as defmed in 
G.S. 130 A 228, 130A-247, except, those places 
subject to G.S. 130A-229. 

(7) "Person" means an individual, firm, association, 
organization, partnership, business trust, corpora- 
tion, or company. 

(8) "Poultry" and "poultry products" mean poultry 
and poultry products as defined in G.S. 
106-549.51(25). 

(9) "Sanitarian" means a person authorized to repre- 
sent the Department on the local or state level in 
making inspections pursuant to state laws and 
rules. 

(10) "Sanitize" means the approved bactericidal treat- 
ment by a process which meets the temperature 
and chemical concentration levels in 15 A NCAC 
18A .2600. 

History Note: Authority G.S. 130A-248; 

Eff. February 1, 1976; 

Readopted Eff. December 5, 1977; 

Amended Eff April 1_, 1997; May I, 1991; July 1, 1984; 

June 10. 1978. 



536 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



LIST OF RULES CODIFIED 



A. he List of Rides 


Codified is a listing of rules that were filed with OAH in the month indicated. 


J\ey. 




Citation 


= Title, Chapter, Subchapter and Rule(s) 


AD 


= Adopt 


AM 


= Amend 


RP 


= Repeal 


With Chgs 


= Final text differs from proposed text 


Corr 


= Typographical errors or changes that requires no rulemaking 


Temp. 


= Rule was filed as a temporary rule 


Eff. Date 


= Date rule becomes effective 



TITLE 



NORTH CAROLINA ADMINISTRATIVE CODE 
JUNE 96 
DEPARTMENT TITLE DEPARTMENT 



10 


Human Resources 


11 


Insurance 


12 


Justice 


15A 


Environment, Health, 




and Natural Resources 


16 


Public Education 


17 


Revenue 


18 


Secretary of State 



21 Occupational Licensing Boards 

1 - Acupuncture 
32 - Medical Examiners 
37 - Nursing Home Administrators 
46 - Pharmacy 

54 - Practicing Psychologists 
58 - Real Estate Commission 
68 - Substance Abuse Professionals 



25 



State Personnel 



RULE OTATION 


AD 


AM 


RP 


WllH 
CHGS 


CORR 


TEMP 


EFFECTIVE 
DATC 


10 


NCAC 3C .6208 




/ 










08/01/96 


26B .0105 




/ 




/ 






08/01/96 


41P .0002 




/ 








/ 


07/01/96 


.0005 - .0006 




/ 








/ 


07/01/96 


.0008 - .0012 




/ 








/ 


07/01/96 


.0013 


/ 










/ 


07/01/96 


49A .0002 




/ 








/ 


07/01/96 


49B .0202 




/ 








/ 


07/01/96 


.0310 




/ 








/ 


07/01/96 




.0502 




/ 








/ 


07/01/96 


SOD .0101 - .0103 


/ 






/ 






07/01/96 


.0201 


/ 






/ 






07/01/96 


.0301 - .0302 


/ 






/ 






07/01/96 





11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



537 



LIST OF RULES CODIFIED 





RULJE CTTATtON 


AD 


AM 


RP 


WITH 
CHGS 


CORK 


TEMP 


tSUiCnVE 
DATE 








10 


NCAC 50D .0401 


/ 






/ 






07/01/96 


.0402 


/ 












07/01/96 


.0501 - .0503 


/ 






/ 






07/01/96 


11 


NCAC 12 .0551 




/ 




/ 






04/01/97 


16 .0703 




/ 










04/01/97 


12 


NCAC 21 .0101 




/ 










08/01/96 


.0206 




/ 










08/01/96 


.0210 




/ 










08/01/96 


15A 


NCAC 2B .0315 




/ 




/ 






07/01/96 


2D .0101 




/ 










07/01/96 


.0501 




/ 




/ 






07/01/96 


.0516 




/ 










07/01/96 


.0518 




/ 




/ 






07/01/96 


.0519 




/ 










07/01/96 


.0520 






/ 








07/01/96 


.0521 




/ 




/ 






07/01/96 


.0524 




/ 




/ 






07/01/96 


.0525 






/ 








07/01/96 


.0531 




/ 




/ 






07/01/96 


.0535 




/ 




/ 






07/01/96 


.0537 




/ 










07/01/96 


.0539 


/ 






/ 






07/01/96 


.0601 




/ 










07/01/96 


.0604 




/ 




/ 






07/01/96 


.0608 




/ 




/ 






07/01/96 


.0804 




/ 










07/01/96 


.0805 




/ 




/ 






07/01/96 


.0901 




/ 




/ 






07/01/96 


.0902 




/ 










07/01/96 


.0917 - .0919 




/ 










07/01/96 


.0920 




/ 




/ 






07/01/96 


.0921 - .0922 




/ 










07/01/96 





53S 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



LIST OF RULES CODIFIED 





RULE CTTATION 


AO 


AM 


RP 


WITH 
CHGS 


CORR 


TEMP 


EFFECTIVE 
DATE 


.0923 




/ 




/ 






07/01/96 


15A NCAC 2D .0924 




/ 










07/01/96 


.0926 - .0927 




/ 




• 






07/01/96 


.0928 




/ 










07/01/96 


.0929 






/ 








07/01/96 


.0934 




/ 




• 






07/01/96 


.0935 




• 










07/01/96 


.0937 




/ 










07/01/96 


.0951 




/ 










07/01/96 


.0953 - .0954 




/ 




/ 






07/01/96 


.1109 




/ 




/ 






07/01/96 


.1110 


/ 












07/01/96 


.1111 


/ 






/ 






07/01/96 


.1202 




/ 










07/01/96 


.1204 




/ 




/ 






07/01/96 


.1205 -.1206 




/ 










07/01/96 


.1901 


/ 












07/01/96 


.1902 -.1904 


/ 






/ 






07/01/96 


.1905 


/ 












07/01/96 


.1906 


/ 






/ 






07/01/96 


2H .0610 




/ 




/ 






07/01/96 


2Q .0103 




/ 




/ 






07/01/96 


.0109 




/ 




/ 






07/01/96 


.0201 - .0202 




/ 










07/01/96 


.0203 




/ 




/ 






07/01/96 


.0204 




/ 










07/01/96 


.0207 




/ 










07/01/96 


.0302 




/ 










07/01/96 


.0311 




/ 










07/01/96 


.0501 - .0502 




/ 










07/01/96 


.0503 




/ 




/ 






07/01/96 


.0507 - .0508 




/ 










07/01/96 





ii;« 



A^O^JH CAROLINA REGISTER 



July 15, 1996 



539 







LIST OF RULES CODIFIED 










RUUE CITATION 


AD 


AM 


RP 


WTTH 
CHGS 


CORK 


TEMP 


EFraCTIVE 
DATE 


.0526 


/ 












07/01/96 


7H .0208 










• 






15A 


NCAC lOF .0302 










/ 






.0330 










/ 






18A .1814 




/ 










08/01/96 


20D .0243 




/ 




/ 






08/01/96 


211 .0101 


/ 










/ 


07/08/96 


21J .0101 


/ 










/ 


07/08/96 


16 


NCAC lA .0001 




/ 










04/01/97 


.0003 






/ 








04/01/97 


17 


NCAC 5C .2101 




/ 




/ 






08/01/96 


6B .0612 




/ 




/ 






08/01/96 


.3716 




/ 




/ 






08/01/96 


7B .1101 




/ 




/ 






08/01/96 


.1105 




/ 










08/01/96 


.1108 - .1110 




/ 










08/01/96 


.1112 




/ 










08/01/96 


.1114 




/ 










08/01/96 


.1123 




/ 




/ 






08/01/96 


.1602 




/ 




/ 






08/01/96 


.1701 -.1702 




/ 




/ 






08/01/96 


.1802 




/ 




/ 






08/01/96 


.2401 




/ 




/ 






08/01/96 


.2601 






/ 








08/01/96 


.4002 




/ 










08/01/96 


.4004 




/ 










08/01/96 


.4008 




/ 




/ 






08/01/96 


.4301 




/ 




/ 






08/01/96 


.4408 




/ 




/ 






08/01/96 


.4902 




/ 




/ 






08/01/96 


18 


NCAC 9 .0112 










/ 




08/01/96 


21 


NCAC 1 .0705 


/ 






/ 






08/01/96 





540 



NORTH CAROLINA REGISTER 



My 15, 1996 



11:8 



LIST OP RULES CODIFIED 



VKVe, CnATTON 


AO 


AM 


RP 


WITH 
CHGS 


CORK 


TEMP 


EFFECTIVE 
DATE 


.0709 


/ 






/ 






08/01/96 


32H .0101 






/ 








08/01/96 


.0102 




/ 




/ 






08/01/96 


21 NCAC 32H .0201 




/ 




/ 






08/01/96 


.0301 - .0303 




/ 




/ 






08/01/96 


.0401 - .0404 




/ 




/ 






08/01/96 


.0406 




/ 




/ 






08/01/96 


.0407 




/ 










08/01/96 


.0408 




/ 










08/01/96 


.0409 


/ 






/ 






08/01/96 


.0501 - .0502 




/ 




/ 






08/01/96 


.0504 - .0506 




/ 




/ 






08/01/96 


.0507 


/ 






/ 






08/01/96 


.0601 




/ 




/ 






08/01/96 


.0602 




/ 










08/01/96 


.0701 




/ 




/ 






08/01/96 


.0801 




/ 




/ 






08/01/96 


.0901 




/ 




/ 






08/01/96 


.0902 




/ 










08/01/96 


37A .0100 










/ 






46 .1204 




/ 










07/01/96 


.1505 




/ 










07/01/96 


.1601 




/ 




/ 






07/01/96 


.1602 




/ 










07/01/96 


.1811 


/ 






/ 






07/01/96 


.1910 






/ 








07/01/96 


.2104 




/ 










07/01/96 


.2403 




/ 




/ 






07/01/96 


.2502 




/ 




/ 






07/01/96 


.2504 




/ 




/ 






07/01/96 


54 .1605 




/ 




/ 






07/01/96 


.1705 




/ 




/ 






07/01/96 



ii:5 



NORTH CAROLINA REGISTER 



July 15, 1996 



541 







LIST OF RULES CODIFIED 












RULE CITATION 


AD 


AM 


RP 


WITH 


CCWR 


TCMP 


EraEcnvE 

DATE 






.2202 - .2203 




/ 




/ 






07/01/96 


.2704 




/ 










08/01/96 


.2706 




/ 










08/01/96 


58A .0107 




/ 










07/01/96 


21 NCAC 58A .0302 




/ 










07/01/96 


.0401 




/ 




/ 






07/01/96 


.0402 




/ 










07/01/96 


.0502 




/ 




/ 






07/01/96 


.0503 - .0504 




/ 










07/01/96 


.0505 




/ 




/ 






07/01/96 


.0506 




/ 










07/01/96 


.0510 


/ 












07/01/96 


.1702 




/ 




/ 






07/01/96 


SBC .0104 




/ 










07/01/96 


.0305 




/ 




/ 






07/01/96 


.0306 - .0307 




/ 










07/01/96 


.0311 - .0312 


/ 












07/01/96 


58E .0203 - .0204 




/ 










07/01/96 


.0304 




/ 










07/01/96 


.0310 


/ 












07/01/96 


.0406 - .0407 




/ 










07/01/96 


.0411 




/ 










07/01/96 


.0503 




/ 










07/01/96 


.0511 




/ 










07/01/96 


68 .0101 


/ 






/ 






08/01/96 


.0102 


/ 












08/01/96 


.0201 


/ 












08/01/96 


.0202 - .0206 


/ 






/ 






08/01/96 


.0207 


/ 












08/01/96 


.0208 - .0213 


/ 






/ 






08/01/96 


.0401 - .0403 


/ 






/ 






08/01/96 


.0404 


/ 












08/01/96 





5-^2 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



LIST OF RULES CODIFIED 



RULE CITATION 


AD 


AM 


RP 


WITH 
CHGS 


COIR 


TEMP 


EFFECIiVE 
DATE 




.0405 - .0407 


/ 






/ 






08/01/96 


.0701 - .0703 


/ 






/ 






08/01/96 


.0704 - .0705 


/ 












08/01/96 


.0706 - .0707 


/ 






/ 






08/01/96 


.0708 


/ 












08/01/96 


21 


NCAC 68 .0709 


/ 






/ 






08/01/96 


25 


NCAC IJ .0613 




/ 




/ 






08/01/96 



ii:* 



NORTH CAROLINA REGISTER 



July 15, 1996 



543 



RULES REVIEW COMMISSION 



± his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. July 18. 1996 M 
10:00 a.m. Anyone wishing to submit written comment on any rule before the Commission should submit those comments 
to the RRC staff, the agency, and the individual Commissioners by Monday. July 15. 1996. at 5:00 p.m. Specific 
instructions and addresses may be obtained from the Rules Review Commission at 919-733-2721. Anyone wishing to 
address the Commission should notify the RRC staff and the agency at least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Vemice B. Howard 

Teresa L. Small wood 

Charles H. Henry 

Philip O. Redwine - Vice Chairman 



Appointed by House 

Jennie J. Hayman - Chairman 
Bill Graham 
Paul Powell 
Ed Shelton 



RULES REVIEW COMMISSION MEETEMG DATES 



July 18, 1996 
August 15, 1996 
September 19, 1996 



October 17, 1996 
November 21, 1996 
December 19, 1996 



MEETING DATE: JULY 18, 1996 



LOG OF FILINGS 
RULES SUBMITTED: MAY 20, 1996 THROUGH JUNE 20, 1996 



AGENCY/DIVISION 



RULE NAME 



RULE 



ACTION 



DEPARTMENT OF COMMERCE 

Institutional Conservation Program 



4 NCAC 12C .0007 



Repeal 



DHR/SOCIAL SERVICES COMMISSION 








Services to Foster Parents 


10 NCAC 41F .0705 


Amend 




Criminal Convictions 


10 NCAC 4 IF .0706 


Repeal 




Criminal Histories 


10 NCAC 41F .0707 


Adopt 




Criminal Background Checks 


10 NCAC 41F .0812 


Repeal 




Criminal History Checks 


10 NCAC 41F .0813 


Adopt 




Training Requirements 


10 NCAC 41F .0814 


Adopt 




Acceptance of Reports 


10 NCAC 42V .0201 


Amend 




Identity of Complainant 


10 NCAC 42V .0802 


Amend 




Specific Findings 


10 NCAC 42V .0803 


Amend 




DEPARTMENT OF INSURANCE 








Definitions 


11 NCAC 20 .0101 


Adopt 




Written Contracts 


11 NCAC 20.0201 


Adopt 




Contract Provisions 


1 1 NCAC 20 .0202 


Adopt 




Changes Requiring Approval 


1 1 NCAC 20 .0203 


Adopt 




Carrier Contracts 


1 1 NCAC 20 .0204 


Adopt 




Filing Requirements 


1 1 NCAC 20 .0205 


Adopt 




Provider Availability 


11 NCAC 20 .0301 


Adopt 




Provider Accessibility 


11 NCAC 20 .0302 


Adopt 




Provider Network 


1 1 NCAC 20 .0303 


Adopt 




Monitoring Activities 


1 1 NCAC 20 .0304 


Adopt 




Credential Verification 


1 1 NCAC 20 .0401 


Adopt 




544 NORTH CAROLINA REGISTER 


July 15, 1996 




11:8 



RULES REVIEW COMMISSION 



Organization Structure 


11 NCAC20 


.0402 


Adopt 


Written Credential Verification 


1 1 NCAC 20 


.0403 


Adopt 


Application 


1 1 NCAC 20 


.0404 


Adopt 


Verification of Credentials 


1 1 NCAC 20 


.0405 


Adopt 


Provider Files 


1 1 NCAC 20 


.0406 


Adopt 


Reverification 


1 1 NCAC 20 


.0407 


Adopt 


Confidentiality 


11 NCAC 20 


.0408 


Adopt 


Records and Exam 


1 1 NCAC 20 


.0409 


Adopt 


Delegation 


11 NCAC 20 


.0410 


Adopt 


Program 


1 1 NCAC 20 


.0501 


Adopt 


Structure 


1 1 NCAC 20 


.0502 


Adopt 


Plan 


11 NCAC 20 


.0503 


Adopt 


Activities 


1 1 NCAC 20 


.0504 


Adopt 


Quality of Care 


1 1 NCAC 20 


.0505 


Adopt 


Delegation of Activities 


1 1 NCAC 20 


.0506 


Adopt 


Corrective Action 


1 1 NCAC 20 


.0507 


Adopt 


Conflicts of Interest 


1 1 NCAC 20 


.0508 


Adopt 


Confidentiality 


1 1 NCAC 20 


.0509 


Adopt 


Records and Exams 


1 1 NCAC 20 


.0510 


Adopt 


Internal Audit 


1 1 NCAC 20 


.0511 


Adopt 


Application 


1 1 NCAC 20 


.0601 


Adopt 


Written Notice 


11 NCAC 20 


.0602 


Adopt 


Accessibility 


1 1 NCAC 20 


.0701 


Adopt 


DEPARTMENT OF ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 




Statement of Purpose 


15A NCAC IC .0101 


Amend 


Exceptions 


15ANCAC IC .0503 


Amend 


Non-Major Activities 


15A NCAC IC .0504 


Amend 


DEHNR/ENVmONMENTAL MANAGEMENT COMMISSION 








General Procedures 


15A NCAC 2B .0101 


Amend 


Analytical Procedures 


15A NCAC 2B .0103 


Amend 


Waters Affected by Dredge 


15A NCAC 2B .0109 


Repeal 


Antidegradation Policy 


15 A NCAC 2B .0201 


Amend 


Definitions 


15A NCAC 2B .0202 


Amend 


Wetland Standards 


15ANCAC2B .0231 


Adopt 


Purpose 


15 A NCAC 2H .0501 


Adopt 


Application 


15A NCAC 2H .0502 


Amend 


Public Notice 


15A NCAC 2H .0503 


Amend 


Hearing 


15A NCAC 2H .0504 


Amend 


Review of Applications 


15A NCAC 2H .0506 


Adopt 


Issuance of Certification 


15 A NCAC 2H .0507 


Amend 


DEHNRAVILDLU-E RESOURCES COMMISSION 








Application 


15A NCAC lOF .0102 


Amend 


Transfer of Ownership 


15A NCAC lOF .0103 


Amend 


Certificate of Number 


15A NCAC lOF .0104 


Amend 


Numbering Pattern 


15A NCAC lOF .0105 


Amend 


Display of Vessel Numbers 


15A NCAC lOF .0106 


Amend 


Validation Decal 


15A NCAC lOF .0107 


Amend 


Temporary Certificate 


15A NCAC lOF .0109 


Adopt 


Brunswick County 


15A NCAC lOF .0305 


Amend 


Dare County 


15ANCAC lOF .0310 


Amend 


Catawba County 


15A NCAC lOF .0342 


Amend 


Person County 


15A NCAC lOF .0348 


Amend 



DEHNR/COMMISSION FOR HEALTH SERVICES 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



545 



RULES REVIEW COMMISSION 



Definitions 

Reports of Elevated Blood 

Examination 

Investigation 

Notification 

Abatement 



15 A NCAC 
15A NCAC 
15A NCAC 
15 A NCAC 
15A NCAC 
15A NCAC 



18A .3101 
18A .3102 
18A .3103 
18A .3104 
18A .3105 
18A .3106 



Amend 
Amend 
Amend 
Amend 
Amend 
Amend 



NC STATE BOARD OF EXAMINERS FOR NURSING HOME ADMINISTRATORS 

Initial Licensure Fee 21 NCAC 37D .0202 Amend 

Renewal Fee 21 NCAC 37G .0102 Amend 

Continuing Education 21 NCAC 37H .0102 Amend 



RULES REVIEW OBJECTIONS 



ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Environmental Management 

15A NCAC 2B .0216 - Fresh Surface Water Quality Standards for Ws-iv Waters 

Agency Revised Rule 
15A NCAC 2D .0501 - Compliance with Emission Control Standards 

Agency Revised Rule 
15 A NCAC 2D .0608 - Program Schedule 

Agency Revised Rule 
15 A NCAC 2D .0901 - Definitions 

Agency Re\'Lsed Rule 
15A NCAC 2D .0926 - Bulk Gasoline Plants 

Agency Revised Rule 
15 A NCAC 2D .0934 - Coating of Miscellaneous Metal Parts and Products 

Agency Revised Rule 
15A NCAC 2D .1109 - Case-by-Case Maximum Achievable Control Technology 

Agency Revised Rule 
15A NCAC 2H .0219 - Minimum Design Requirements 

Rule Returned to Agency 

Agency Filed Ride for Codification Over RRC Objection 

Commission for Health Services 

15A NCAC 133 .1406 - Operational Requirements for Solid Waste Compost Facilities 

Agency Revised Rule 

Rule Returned to Agency 

Agency Filed Ride for Codification Over RRC Objection 
15A NCAC 13B .1407 - Classification/Distribution of Solid Waste Compost Products 

Agency Revised Rule 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 
15A NCAC 13B .1408 - Methods for Testing and Reporting Requirements 

Agency Revised Rule 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 
15 A NCAC 13B .1409 - Approval of Alternative Procedures and Requirements 

Rule Returned to Agency 

Agency Filed Rule for Codification Over RRC Objection 

Wildlife Resources Commission 

15A NCAC lOD .0003 - Hunting on Game Lands 
Agency Revised Rule 



RRC Objection 




05/16/96 


Obj. Removed 




05/16/96 


RRC Objection 




06/20/96 


Obj. Removed 




06/20/96 


RRC Objection 




06/20/96 


Obj. Removed 




06/20/96 


RRC Objeaion 




06/20/96 


Obj. Removed 




06/20/96 


RRC Objection 




06/20/96 


Obj. Removed 




06/20/96 


RRC Objeaion 




06/20/96 


Obj. Removed 




06/20/96 


RRC Objeaion 




06/20/96 


Obj. Removed 




06/20/96 


RRC Objeaion 




04/18/96 


Obj. Cont'd 




05/16/96 




Eff. 


06/01/96 


RRC Objeaion 




04/18/96 


Obj. Cont'd 




04/18/96 


Obj. Cont'd 




05/16/96 




Eff 


06/01/96 


RRC Objeaion 




04/18/96 


Obj. Cont'd 




04/18/96 


Obj. Cont'd 




05/16/96 




Eff 


06/01/96 


RRC Objeaion 




04/18/96 


Obj. Cont'd 




04/18/96 


Obj. Cont'd 




05/16/96 




Eff. 


06/01/96 


RRC Objeaion 




04/18/96 


Obj. Cont'd 




05/16/96 




Eff 


06/01/96 


RRC Objeaion 




05/16/96 


Obj. Removed 




05/16/96 



546 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



RULES REVIEW COMMISSION 



HUMAN RESOURCES 

Commission for Mental Health, Developmental Disabilities and Substance Abuse Services 

10 NCAC 15 A .0126 - Resolution of Differences of Opinion RRC Objection 

Agency Revised Rule Obj. Removed 

JUSTICE 

Private Protective Services 

12 NCAC 7D .0808 - Concealed Weapons 
No Response from Agency 
Agency Revised Rule 

MEDICAL BOARD 

21 NCAC 32H .0702 - Requests 
No Response from Agency 
Rule Returned to Agency for Failure to Respond Pursuant to G.S. 150B-21.12 

BOARD OF PHARMACY 

21 NCAC 46 . 1601 - Pharmacy Permits 

Agency Revised Rule 
21 NCAC 46 .1607 - Out-of-State Pharmacies 

Rule Withdrawn by Agency 
21 NCAC 46 .1811 - Excessive Dispensing of Prescription Drugs 

Agency Revised Rule 
21 NCAC 46 .2502 - Responsibilities of Pharmacist-Manager 

Agency Revised Rule 
21 NCAC 46 .2504 - Patient Counseling 

Agency Revised Rule 

PUBLIC EDUCATION 



05/16196 
05/16/96 



RRC Objection 


03/21/96 


Obj. Cont'd 


04/18/96 


Obj. Removed 


05/16/96 


RRC Objection 


04/18/96 


Obj. Cont'd 


05/16/96 


Obj. Cont'd 


06/20/96 


RRC Objection 


06/20/96 


Obj. Removed 


06/20/96 




06/20/96 


RRC Objection 


06/20/96 


Obj. Removed 


06/20/96 


RRC Objection 


06/20/96 


Obj. Removed 


06/20/96 


RRC Objection 


06/20/96 


Obj. Removed 


06/20/96 



State Board of Education 

16 NCAC lA .0003 - Organization of Department 

Agency Repealed Rule 
16 NCAC 6D .0106 - Limited English Proficiency Programs 

No Response from Agency 

Agency Revised Rule 
16 NCAC 6H .0007 - Special Education Assessment and Placement Procedures 

Agency Revised Rule 



RRC Objection 


05/16/96 


Obj. Removed 


05/16/96 


RRC Objection 


03/21/96 


Obj. Cont'd 


04/18/96 


Obj. Removed 


05/16/96 


RRC Objection 


05/16/96 


Obj. Removed 


05/16/96 



REAL ESTATE COMMISSION 



21 NCAC 58A .0104 - Agency Agreements and Disclosure 
21 NCAC 58A .0113 - Reporting Criminal Convictions 
21 NCAC 58A .0502 - Business Entities 

Agency Revised Rule 
21 NCAC 58A .0610 - Subpoenas 
21 NCAC 58E .0302 - Elective Course Component 



RRC Objection 


06/20/96 


RRC Objection 


06/20/96 


RRC Objection 


06/20/96 


Obj. Removed 


06/20/96 


RRC Objection 


06/20/96 


RRC Objection 


06/20/96 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



547 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina 's Administrative Procedure Act. Copies of 
the decisions listed in the index and not published are available upon request for a minimal charge by contacting the 
Office of Administrative Hearings, (919) 733-2698. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JUUAN MANN, EI 

Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMINISTRATFVE LAW JUDGES 



Brenda B. Becton 
Sammie Chess Jr. 
Beecher R. Gray 
Meg Scott Phipps 



Robert Roosevelt Reilly Jr. 
Dolores Nesnow Smith 
Thomas R. West 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ALCOHOLIC BEVERAGE CONTROL COMMISSION 



Fuad Saif Murshed v. AJc. Bev. Ctl. Comm. & Durham Mem. Bapt. Ch. 

Alcoholic Beverage Control Commission v. Tremik, Inc. 

Alcoholic Beverage Control Commission v. Maria Virginia Tramontane 

Alcoholic Beverage Control Commission v. Huffman Oil Co.. Inc. 

Pinakin P. Talate v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Commission v. Entrepreneur, Inc. 

Alcoholic Beverage Control Commission v. Zell, Inc. 

Alcoholic Beverage Control Commission v. Henry Franklin Gurganus 

Andrew Parker v. Alcoholic Beverage Control Commission 

Barraq Sabri Alquza v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm. v. Partnership T/A T & L Groceries 

Alcoholic Beverage Control Commission v. Cashion's Food Mart, Inc. 

Bro Bee, Inc. v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Commission v. Donald Ray Doak 

Alcoholic Beverage Control Commission v. Janice Lorraine Jeter 

Alcoholic Beverage Control Commission v. Well Informed, Inc. 

Alcoholic Beverage Control Commission v. Kubbard, Inc. 

Alcoholic Beverage Control Commission v. Stemmermans's, Inc. 

George Wright and Alice Ramsuer v. Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Commission v. Robert Montgomery McKnight96 

Gerald Audry Sellars v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Commission v. Jacqueline Robin Anthony 

Alcoholic Beverage Control Commission v. Millicent J. Green 

Ghassan Hasan Issa v. Alcoholic Beverage Control Cotrmiission 

Aicooholic Beverage Control Commission v. Triangle Drive-In 



95 ABC 0922 


Chess 


04/24/96 


95 ABC 0925 


Morrison 


03/25/96 


95 ABC 


1200 


West 


04/23/96 


95 ABC 


1251 


West 


04/03/96 


95 ABC 


1329 


West 


04/10/96 


95 ABC 


1363 


Reilly 


05/02/96 


95 ABC 


1366 


West 


06/17/96 


95 ABC 


1389 


West 


04/01/96 


95 ABC 


1402 


Phipps 


03/27/96 


95 ABC 


1424 


Phipps 


04/03/96 


95 ABC 


1443 


West 


03/26/96 


95 ABC 


1444 


Gray 


03/13/96 


95 ABC 


1480 


West 


04/15/96 


95 ABC 


1488 


West 


03/29/96 


96 ABC 0013 


Reilly 


04/26/96 


96 ABC 0016 


Chess 


05/28/96 


96 ABC 0017 


Reilly 


05/20/96 


96 ABC 0018 


Chess 


05/28/96 


96 ABC 0058 


Becton 


04/16/96 


96 ABC 0135 


Phipps 


05/09/96 


96 ABC 0160 


Becton 


06/25/96 


96 ABC 0184 


Phipps 


05/09/96 


96 ABC 0234 


Nesnow Smith 


06/13/96 


96 ABC 0256 


Morrison 


05/23/96 


96 ABC 0443 


Reilly 


06/11/96 



11:03 NCR 166 



11:08 NCR 564 



COMMISSION FOR AUCTIONEERS 



John W. Foster v. Auctioneer Licensing Board 
CRIME CONTROL AND PUBLIC SAFETY 



96 CFA 0201 



Phipps 



05/06/96 



Roland Lee Kelly, Jr. v. United Family Services, Victim Assistance/Crime 95 CPS 0568 
Victims Compensation Comm. 



Morrison 



05/29/96 



548 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



CONTESTED CASE DECISIONS 



AGENCY 



Robert F. Bronsdon v. Crime Victims Compensation Commission 

Helen B. Hunter-Reid v. Crime Victims Compensation Commission 

Kenneth Saunders v. Victims Compensation Commission 

Ruby H. Ford v. Crime Victims Compensation Commission 

Manuel Cervantes v. Victims Compensation Fund 

Donna Williams v. Crime Victims Compensation Commission 

ENVIRONMENT. HEALTH, AND NATURAL RESOURCES 

Gribble & Assoc. & Four Seasons Car Wash v. EHNR 

David Martin Shelton v. Rockingham County Dept/Public Health, EHNR 

Kinston Urological Associates, P. A. v. N.C. Cancer Program 

Kinston Urological Associates, P. A. v. N.C. Cancer Program 

Elsie & Tony Cecchini v. Environment, Health, & Natural Resources 

Gerald Mac Clamrock v. Environment, Health, & Natural Resources 



CASE 




DATE OF 


NUMBER 


ALi 


DECISION 


95 CPS 1216 


Chess 


05/28/96 


95 CPS 1336 


Nesnow Smith 


03/29/96 


95 CPS 1445 


Chess 


03/26/96 


96 CPS 0110 


Reilly 


04/18/96 


96 CPS 0118 


Chess 


03/19/96 


96 CPS 0493 


Morrison 


06/13/96 



PUBLISHED DECISION 
REGISTER CITATION 



11:02 NCR 93 



95 EHR 0576 


Gray 


04/25/96 






95 EHR 0941 


West 


05/01/96 






95 EHR 1198*^ 


Nesnow Smith 


03/27/96 


11:02 NCR 


97 


95 EHR 1199*^ 


Nesnow Smith 


03/27/96 


11:02 NCR 


97 


95 EHR 1240 


Reilly 


04/22/96 






96 EHR 0168 


Phipps 


05/06/96 







Coastal Resources 

Martin W. Synger v. Division of Coastal Management 95 EHR 1006 

J. E. Smith Construction Co. v. Division of Coastal Management 96 EHR 0074 

Theodore D. Barris v. Town of Long Beach, NC & Coastal Mgmt, EHNR 96 EHR 0277 

Environmental Health 



Forest Gate Motel v. Environment, Health, and Natural Resources 96 EHR 0076 West 

Paradise Ridge Home Owners by Anne Norburn v. EHNR, Env. Health 96 EHR 0162 Phipps 



Environmental Management 

Herman E. Smith v. Division of Environmental Management 
Conover Lumber Co., Inc. v. EHNR, Division of Environmental Mgmt. 
Jack West d/b/a Jack West Tree Service v. Environmental Mgmt. Comm. 
Clover M Farms, Inc. v. EHNR, Division of Environmental Management 



Chess 


05/13/96 


Nesnow Smith 


02/23/96 


West 


05/09/96 



06/17/96 
05/06/96 



95 EHR 0962 


West 


04/30/96 


95 EHR 1081 


Reilly 


04/12/96 


95 EHR 1421 


Morrison 


04/08/96 


96 EHR 0405 


Becton 


06/10/96 



Latui Resources 



K&G Properties, Inc. v. EHNR, Division of Land Resources 
Marine Fisheries 



95 EHR 1078 



Nesnow Smith 



03/25/96 



Robert I. Swinson, Sr. v. EHNR, Health & Nat. Res., Marine Fisheries 
Grayden L. Fulcher and Michael Styron, Sr. v. Div. of Marine Fisheries 

Solid Waste Management 

R. Donald Phillips v. EHNR, Solid Waste Management Division 
R. Donald Phillips v. EHNR, Solid Waste Management Division 



95 EHR 0320 

96 EHR 0003 



95 EHR 1190** 

96 EHR 0554*^ 



WIC Program 

Lazelle Marks v. EHNR, Division of Maternal and Child Health 
Hani Sader v. Nutrition Services, Div/Matemal & Child Health, EHNR 
Bob's Quick Mart, Bobby D. Braswell v. Env., Health, & Natural Res. 
Larry E. Mis v. USDA-Food/Cons Svc, Cory Menees-WIC Prog., EHNR 

EQUAL EMPLOYMENT OPPORTUNTTIES 

Carl D. Davis v. Department of Correction 91 EEO 1101 

HUMAN RESOURCES 



Chess 
Reilly 



Gray 
Gray 



Nesnow Smith 



03/29/96 
03/06/96 



05/22/96 
05/22/96 



11:03 NCR 168 



95 EHR 0870 


West 


03/27/96 


96 EHR 0054 


West 


05/22/96 


96 EHR 0091 


Nesnow Smith 


04/02/96 


96 EHR 0164 


Phipps 


03/19/96 



05/06/96 



Cassandra M. Deshazo v. Christine E. Carroll, Chf Chid Abuse/Neg. Sec. 95 DHR 1410 
Medicus Robinson v. Department of Human Resources 96 DHR 0167 



Division of Child Development 

Molly Fallio v. Department of Human Resources 
Molly Fallin v. Department of Human Resources 



94 DHR 0872*5 

95 DHR 1013*' 



Phipps 
Nesnow Smith 



Gray 
Gray 



03/28/96 
04/12/96 



05/15/96 
05/15/96 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



549 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Mary T. Hill v. DHR, Division of Child Development 
lola Roberson v. DHR, Division of Child Development 



95 DHR 1192 Phipps 
95 DHR 1244 Gray 



Division of Facility Services 

Eloise Brown v. Dcpl. of Human Resources, Division of Facility Services 95 DHR 1002 Phipps 

Certificate of Need Section 

Nash Hospitals, Inc. v. DHR, Div/Facility Sen/ices, Cert, of Need Sect. 95 DHR 1116*^ Phipps 
Pitt Cty Mem. Hospital, Inc. v. DHR, Div/Facility Sries, Cert/Need Sect. 95 DHR 1177*' Phipps 

Group Care Licensure Section 

Alex L. McCall v. DHR, Div/Facility Svcs, Group Care Licensure Sec. 95 DHR 1456 Nesnow Smith 

Medical Facilities Licensure Section 



03/27/96 
05/16/96 



03/07/96 



05/23/96 
05/23/96 



03/26/96 



11:06 NCR 
11:06 NCR 



389 
389 



Deborah Reddick v. Department of Human Resources 

Stacey Yvette Franklin v. Facility Services, Medical Facilities Lie. Sec. 

Division of Medical Assistance 



96 DHR 0240 
96 DHR 0358 



Reilly 
Morrison 



Judy Malcuit, Re Melissa Malcuit V. DHR, Div. of Medical Assistance 96 DHR 0129 Gray 
Division of Social Services 



Rozena Chambliss v. Department of Human Resources 95 DHR 1044 

Addie & Major Short v. Department of Human Resources 95 DHR 1063 

Mr. and Mrs. Jessie Stevenson v. DHR, Division of Social Services 95 DHR 1072 

William G. Fisher v. DHR, Div. of Social Services, Prog Integrity Branch95 DHR 1234 

Vema F. Nunn v. Department of Human Resources 95 DHR 1330 

Nancy Hooker, Helen Tyndall v. Department of Human Resources 96 DHR 0155 

Child Support Enforcement Section 



Donald E. Rideout Jr. v. Department of Human Resources 
Christopher F. Roakes v. Department of Human Resources 
Claude Eure Jr. v. Department of Human Resources 
Richard R. Fox, Sr. v. Department of Human Resources 
Joselito D. Pilar v. Department of Human Resources 
David Lee Grady v. Department of Human Resources 
Patrick Orlando Crump v. Department of Human Resources 
Peter Robert Kovolsky v. Department of Human Resources 
Tony Lee 2^pata v. Department of Human Resources 
Lawrence Dow Dean v. Department of Human Resources 
Carl E. Coffey v. Department of Human Resources 
Keith Dewayne Senters v. Department of Human Resources 
Lonnie Dawes v. Department of Human Resources 
Mickey Turner v. Department of Human Resources 
James Joseph Gallagher v. Department of Human Resources 
James Thomas McRae v. Department of Human Resources 
Vincent E. Koehler v. Department of Human Resources 
David J. Moseley v. Department of Human Resources 
Derrick L. Conyers v. Department of Human Resources 
Charles Edward Smith v. Department of Human Resources 
Kevin Vereen v. Department of Human Resources 
James Curtis Witwer v. Department of Human Resources 
Thomell Bowden v. Department of Human Resources 
Henry S. Sada v. Department of Human Resources 
Charles F. Moore v. Department of Human Resources 
Daniel Leslie Baker v. Department of Human Resources 
Kenneth L. Lindsey v. Department of Human Resources 
John L. Pike v. Department of Human Resources 
Wm. R. Evans v. Department of Human Resources 
Rory J. Curry v. Department of Human Resources 
Lorin A. Brown v. Department of Human Resources 
Marcus Anthony Butts v. Department of Human Resources 



06/18/96 
05/16/96 



06/12/96 



Nesnow Smith 


03/12/96 


Morrison 


03/19/96 


Phipps 


03/15/96 


Morrison 


03/19/96 


Gray 


04/11/96 


Gray 


04/26/96 



95 CSE 0952 


Reilly 


04/18/96 


95 CSE 1131 


Becton 


05/03/96 


95 CSE 


1155 


Phipps 


06/12/96 


95 CSE 1169 


Becton 


03/19/96 


95 CSE 1180 


Chess 


03/01/96 


95 CSE 


1218 


Morrison 


03/26/96 


95 CSE 


1221 


Nesnow Smith 


03/05/96 


95 CSE 


1230 


Becton 


03/11/96 


95 CSE 


1266 


Gray 


05/02/96 


95 CSE 


1267 


Morrison 


03/29/96 


95 CSE 1270 


Nesnow Smith 


03/15/96 


95 CSE 1273 


Phipps 


04/01/96 


95 CSE 


1274 


Nesnow Smith 


06/12/96 


95 CSE 


1278 


Nesnow Smith 


03/14/96 


95 CSE 


1280 


Chess 


03/19/96 


95 CSE 


1296 


Chess 


03/15/96 


95 CSE 


1301 


Phipps 


05/09/96 


95 CSE 


1304 


Chess 


03/29/96 


95 CSE 


1308 


Reilly 


03/13/96 


95 CSE 


1309 


West 


03/07/96 


95 CSE 


1315 


Phipps 


05/06/96 


95 CSE 


1331 


Becton 


03/26/96 


95 CSE 


1345 


Morrison 


03/07/96 


95 CSE 


1367 


Nesnow Smith 


03/21/96 


95 CSE 


1369 


Chess 


03/27/96 


95 CSE 


1373 


Morrison 


03/12/96 


95 CSE 1375 


West 


06/24/96 


95 CSE 1376 


Nesnow Smith 


03/21/96 


95 CSE 


1377 


Becton 


03/11/96 


95 CSE 


1380 


Maim 


03/15/96 


95 CSE 


1382 


Reilly 


04/18/96 


95 CSE 


1405 


Nesnow Smith 


03/27/96 



550 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



CONTESTED CASE DECISIONS 



AGENCY 



Cynthia Pinder v. Department of Human Resources 

Rhonnie J. Williams v. Department of Human Resources 

Ramon Domenech v. Department of Human Resources 

Demiis L. McNeill v. Department of Human Resources 

Tony A. Rogers v. Department of Human Resources 

Rick E. Atkins v. Department of Human Resources 

Timothy A. Ratley (Jeanes) v. Department of Human Resources 

Richard E. Reader v. Department of Human Resources 

Wilbur Dewayne Bault v. Department of Human Resources 

James C. Smith v. Department of Human Resources 

Ronald D. Johnson v. Department of Human Resources 

Johnny Leary v. Department of Human Resources 

John W. Scott V. Department of Human Resources 

Calvin S. Austin v. Department of Human Resources 

Derek Henslee v. Department of Human Resources 

Donald L. Carr, Jr. v. Department of Human Resources 

Norman Waycaster v. Department of Human Resources 

Lx>renzo Wilson v. Department of Human Resources 

Mark Kevin Bums v. Department of Human Resources 

Cyril Lloyd Payne v. Department of Human Resources 

Christopher F. Byrne v. Department of Human Resources 

Richard Painall Burch v. Department of Human Resources 

Thomell Bowden v. Department of Human Resources 

Carl R. Ritter v. Department of Human Resources 

Gerald Roger Beachum Jr. v. Department of Human Resources 

Daniel J. Carter v. Department of Human Resources 

Kelvin Tarlton v. Department of Human Resources 

John L. Cherry Jr. v. Department of Human Resources 

Terry Sealey v. Department of Human Resources 

Jackie L. Kopczick v. Department of Human Resources 

Alan Kendell Lxjcklear v. Department of Human Resources 

Hazel L. Walker v. Department of Human Resources 

Carl S. McNair v. Department of Human Resources 

David Agurs v. Department of Human Resources 

Melinda S. Tunner v. Department of Human Resources 

Jeanne G. Bishop v. Department of Human Resources 

Rebecca Beaver v. Department of Human Resources 

Vivian B. White v. Department of Human Resources 

Mary R. Mahon v. Department of Human Resources 

Mary R. Mahon v. Department of Human Resources 

Laura Heidorf v. Department of Human Resources 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


95 CSE 1406 


Becton 


03/11/96 


95 CSE 1407 


Chess 


05/06/96 


95 CSE 1408 


Phipps 


03/11/96 


95 CSE 1435 


Becton 


03/13/96 


95 CSE 1436 


Chess 


05/16/96 


95 CSE 1437 


Phipps 


04/01/96 


95 CSE 1465 


Morrison 


03/26/96 


95 CSE 1469 


Nesnow Smith 


04/29/96 


95 CSE 1475 


West 


03/13/96 


96 CSE 0034 


Gray 


05/10/96 


96 CSE 0084 


Nesnow Smith 


03/27/96 


96 CSE 0085 


Becton 


05/03/96 


96 CSE 0130 


Mann 


03/15/96 


96 CSE 0140 


Phipps 


05/17/96 


96 CSE 0188 


Reilly 


05/17/96 


96 CSE 0200 


West 


05/30/96 


96 CSE 0245 


Becton 


05/16/96 


96 CSE 0257 


Phipps 


05/06/96 


96 CSE 0271 


Moirison 


06/24/96 


96 CSE 0272 


Reilly 


05/31/96 


96 CSE 0336 


Chess 


06/26/96 


96 CSE 0339 


Phipps 


06/27/96 


96 CSE 0370 


Morrison 


05/17/96 


96 CSE 0380 


West 


05/08/96 


96 CSE 0411 


Phipps 


06/24/96 


96 CSE 0417 


Gray 


06/24/96 


96 CSE 0424 


Morrison 


05/29/96 


96 CSE 0426 


West 


06/24/96 


96 CSE 0430 


Phipps 


05/29/96 


96 CSE 0431 


Mann 


06/05/96 


96 CSE 0503 


West 


05/30/96 


96 CSE 0559 


West 


06/24/96 


96 CSE 0568 


Becton 


06/24/96 


96 CSE 0580 


Chess 


06/13/96 


95 DCS 0921 


Morrison 


05/09/96 


95 DCS 0958 


West 


04/04/96 


95 DCS 1114 


Reilly 


04/26/96 


95 DCS 1115 


Phipps 


06/04/96 


95 DCS 1137*» 


Chess 


06/11/96 


95 DCS 1142*' 


Chess 


06/11/96 


96 DCS 0065 


Reilly 


03/22/96 



PUBLISHED DECISION 
REGISTER CITATION 



INSURANCE 



Carol M. Hall v. Teachers & State Employees Comp. Major Medical Plan 95 INS 1141 Phipps 04/01/96 

Arthur Wayne Dempsey v. Department of Insurance 95 INS 1255 Nesnow Smith 04/22/96 

Deborah B. Beavers V. Teachers & Si. Emp. Comp. Major Med. Plan 95 INS 1411 Nesnow Smith 05/10/96 

Nadia A. Hakim v. Department of Insurance 95 INS 1422 Nesnow Smith 03/26/96 



11:05 NCR 308 



JUSTICE 



Education and Training Standards Division 



Freddie Lcvem Thompson v. Criml. Justice Ed. & Training Stds. Comm. 95 

Shane Douglas Crawford v. Sheriffs' Ed. & Training Stds. Comm. 

Charles Henry Darnels v. Criml. Justice Ed. &. Training Stds. Comm. 

Valerie Maxine Brewington v. Criml. Justice Ed. & Training Stds. Comm. 95 

Patricia Josephine Bonanno v. Sheriffs' Ed. & Training Stds. Comm. 

Douglas Allan Stuart v. Sheriffs' Ed. & Training Stds. Comm. 

Rick M. Evoy v. Criminal Justice Ed. & Training Stds. Comm. 

Gregory Lee Daughtridge v. Sheriffs' Ed. & Training Stds. Coram. 

Stuart Hugh Rogers v. Sheriffs' Ed. & Training Stds. Comm. 

Larry D. Weston v. Sheriffs' Ed. & Training Stds. Comm. 

Carlton Gerald v. Criminal Justice Ed. & Training Stds. Conun. 

Ken Montie Oxendine v. Criminal Justice Ed. &. Training Stds. Comm. 

David Kent Knight v. Sheriffs' Ed. & Training Stds. Comm. 



95 DOJ 0731 


Chess 


02/29/96 


95 DOJ 0943 


Reilly 


05/17/96 


95 DOJ 1070 


West 


06/12/96 


95 DOJ 1 129 


Nesnow Smith 


04/12/96 


95 DOJ 1 152 


Chess 


03/25/96 


95 DOJ 1 189 


Morrison 


06/06/96 


95 DOJ 1235 


Chess 


03/25/96 


96 DOJ 0027 


Reilly 


03/19/96 


96 DOJ 0029 


West 


06/18/96 


96 DOJ 0037 


Nesnow Smith 


06/12/96 


96 DOJ 0068 


Gray 


03/26/96 


96 DOJ 0071 


West 


03/28/96 


96 DOJ 0115 


West 


03/28/96 



Private Protective Services Board 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



551 



CONTESTED CASE DECISIONS 



AGENCY 

Timothy A. Hawkins v. Private Protective Services Board 
William F. Combs v. Private Protective Services Board 
Randy C. Hoylc v. Private Protective Services Board 

MEDICAL BOARD 

Medical Board v. Martin A. Hatcher, M.D. 
PUBLIC INSTRUCTION 



CASE 




DATE OF 


NUMBER 


AU 


DECISION 


95 DOJ 1419 


West 


04/12/96 


96 DOJ 0022 


West 


03/22/96 


96 DOJ 0024 


Nesnow Smith 


06/10/96 



PUBLISHED DECISION 
REGISTER CITATION 



92BME0510 Gray 



Lavem K. Suggs v. NC Board of Education 

J.T.S. & T.S., Parents of E. M.S. v. Chapel Hill-Carrboro City Schl. Sys. 95 

L.O. v. Charlotte-Mecklenburg Board of Education 

Candyce Ewanda Newsome v. Hertford County Board of Education 

STATE PERSONNEL 

Department of Administration 

Jonathan L. Fann v. Department of Administration. Admin. Personnel 96 OSP 0042 

Carlton Gerald v. State Capitol Police, Department of Administration 96 OSP 0116 

Administrative C^fice of the Court 

Ethel R. Tyson v. NC Judicial Dept., Administrative Office of the Court 96 OSP 0080 

Appalachian State University 

Jamce S. Walton v. Appalachian St University, Claude Cooper, Bill Ragan96 OSP 0062 
Janice S. Carroll v. Appalachian St University, Claude Cooper, Bill Ragan96 OSP 0063 

Caldwell County 

Blake C. Pace v. Caldwell County 96 OSP 0047 

NC Central University 

Franciaa Y. Tate v. Chancellor Julius L. Chambers, NC Central Univ. 95 OSP 1432 

Central North CaroUna School for the Deaf 

Felicia S. Milton v. Central North Carolina School for the Deaf 95 OSP 1241 

Cherry Hospital 

Mar>' A. Boogaerts v. Cherry Hospital, Goldsboro, NC 96 OSP 0269 

Department of Correction 

Haydee Craver v. Department of Correction. Pender Correctional Inst 

Gregory Allen Jones v. Department of Correction, Supt. Bonnie Boyette 95 

Calvia L. Hill v. Department of Correction, McCain Correctional Hospital 95 

Alisha Louise Staley v. Randolph Correctional Center 

Brenda Propst v. Foothills Correctional Institution 

Haydee C. Craver v. Department of Correction, Christopher Kiillips 

EUist CaroUna University 

Bela E. Karvaly, Ph.D. v. ECU Bd. of Trustees. Ch. Richard R. Eakin 96 OSP 0150 

Employment Security Commission 



Gene S. Baker v. Gov. James B. Hunt. Jr., Ann Q. Duncan, Chairman, 

Employment Security Commission 
William Herbert Allen v. Employment Security Commission 
Patricia Garj' v. Employment Security Commission 
Tonderlier Lynch v. Emp. Security Comm., Austin Quality Foods, Inc. 



Gray 
Gray 



Nesnow Smith 



West 
West 



Monisoa 



Nesnow Smith 



Chess 



Becton 



Chess 



06/28/96 



95 EDO 0383 


Nesnow Smith 


03/13/96 


95 EDO 1194 


Mann 


04/12/96 


96EDC0285 


Mann 


05/31/96 


96 EDO 0344 


Chess 


05/15/96 



05/24/96 
04/25/96 



03/15/96 



03/13/96 
03/07/96 



04/01/96 



04/22/96 



05/17/96 



05/29/96 



95 OSP 1046 


Gray 


03/12/96 


95 OSP 1290 


Phipps 


05/14/96 


95 OSP 1460 


Gray 


05/17/96 


96 OSP 0092 


Gray 


06/03/96 


96 OSP 0199 


Morrison 


04/09/96 


96 OSP 0348 


Phipps 


05/15/96 



05/08/96 



11:08 NCR 555 



11:01 NCR 50 



93 OSP 0707 


Becton 


05/16/96 


11:05 NCR 300 


94 OSP 1688 


West 


06/11/96 




95 OSP 0793 


Chess 


05/14/96 




96 OSP 0275 


Chess 


05/21/96 





552 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



04/09/96 



04/22/96 



03/13/96 
06/17/96 





03/26/96 








03/26/96 


11:02 NCR 


89 


Smith 


03/21/96 







Department of Environment, HeaJth, and Natural Resources 

Roberta Ann "Robin" Hood v. Environment, Health, & Natural Resources 95 OSP 0035 Reilly 
FayettevilU State University 

William C. Neal v. Fayetteville State University 95 OSP 0392 Nesnow Smith 

Department of Human Resources 

Ophelia Webb V. Edard R. Inman, Dir. Alamance Cty DSS, Alamance 96 OSP 0112 Gray 

Cty DSS, Alamance County, and DHR 
Gail Marie Rodgers Lincoln v. DHR, DMH/DD/SAS-Cherty Hosp., 96 OSP 0159 Chess 

Cherry Hospital 

Caswell Center 

Ramona C. Jenkins v. Department of Human Resources, Caswell Center 89 OSP 0411 
Ramona C. Jenkins v. Department of Human Resources, Caswell Center 91 OSP 0522 
Franklin D. Sutton v. Department of Human Resources, Caswell Center 94 OSP 0766 

Durham County Department of Social Services 
Jan E. Smith V. Durham County Department of Social Services 95 OSP Hi 1 Morrison 05/24/96 

Halifax County Department of Social Services 
Clairbel Thomas v, Halifax County DSS &. Director, Halifax County DSS 95 OSP 0905 West 05/29/96 

Division of Medical Assistance 
Harold Wiggins V. Division of Medical Assistance 95 OSP 1482 West 06/11/96 

O'Berry Center 
Samuel Geddie v. O'Berry Center 96 OSP 0414 Morrison 06/13/96 

Rockingham County Department of Social Services 
Lorretta Lawson v. Rockingham County DSS 96 OSP 0471 West 06/13/96 

Wake County Department of Social Services 
PhyliB Gilbert v. Wake County Department of Social Services 95 OSP 1238 Phipps 06/27/96 

Department of Insurance 

Larry W. Creech V. Department of Insurance 95 OSP 0631 Reilly 06/06/96 

Department of Labor 

Kevin P. Kolbe, Sr. v. Department of Labor 95 OSP 0968 Morrison 03/14/96 

New Hanover County Board of Health 

Tabandeh Zand v. New Hanover County Board of Health 95 OSP 1035 Nesnow Smith 03/01/96 

North Carolina State University 

Vemell Mitchell v. North Carolina Cooperative Extension 96 OSP 0132 Gray 05/10/96 

Department of Transportation 
Pearlie M. Simuel-Johnson V. Department of Transportation 94 OSP 0589«' Gray 03/01/96 



11:06 NCR 395 



11:07 NCR 434 



11:01 NCR 58 



-¥r Consolidated cases. 



11:8 



NORTH CAROLINA REGISTER 



July 15, 1996 



553 



CONTESTED CASE DECISIONS 



AGENCY 



Dorothy J. Grays v. Div. of Motor Vehicles, Depl. of Transportation 

Pearlie M. Simue! -Johnson v. Department of Transportation 

Melvin Duncan v. Department of Transportation 

Greg Brown v. Department of Transportation 

Jesse Wayne Castle v. State Highway Maint., Guess Rd., Durham, NC 

Archie Brooks v. W. F. Rosser, Department of Transportation 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


94 OSP 1044 


Reilly 


04/12/96 


11:03 NCR 173 


95 OSP 0837»' 


Gray 


03/01/96 




93 OSP 1462 


Morrison 


03/08/96 




96 OSP 0048 


Reilly 


05/02/96 




96 OSP 0087 


Gray 


04/15/96 




96 OSP 0239 


Nesnow Smith 


05/17/96 





Tri-County Mental Health Complex 

Deborah Heii v. Tri-County Mental Health Complex 



95 OSP 1100 



Nesnow Smith 



03/22/96 



University of North Carolina 



Pamela B. Edwards v. University of North Carolina at Chapel Hill 
Keith R. Cameron v. University of North Carolina at Chapel Hill 
Jerel H. Bonner v. School of Nursing UNC at Chapel Hill 
Bela E. Karvaly, Ph.D. v. UNC Bd. of Gov.. Pres. CD. Spangler, Jr. 
Carl E. Whigham v. UNC Hospitals at Chapel Hill 



95 OSP 0842 


Chess 


95 OSP 1060 


Morrison 


96 OSP 0026 


Gray 


96 OSP 0151 


Chess 


96 OSP 0248 


Chess 



06/28/96 
06/24/96 
03/12/96 
05/08/96 
06/11/96 



11:01 NCR 61 



UNIVERSITY OF NORTH CAROLINA 



Sylvia Jeffries v. University of NC Hospitals at Chapel Hill 



96 UNC 0067 Gray 



04/16/96 



554 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

92 BME0510 



NORTH CAROLINA MEDICAL BOARD, 
Petitioner, 



V. 



PROPOSED DECISION 



MARTIN A. HATCHER, M.D., 
Respondent. 



This contested case was commenced in the Office of Administrative Hearings on May 4, 1992 when Petitioner, 
by letter, requested assignment of an Administrative Law Judge to conduct an administrative hearing in this matter. This 
case was continued off the active hearing docket at the request of the parties while pending or anticipated criminal 
proceedings were concluded. 

A contested case hearing was conducted in this matter on March 19-20, 1996 in Guilford County. The hearing 
was closed to the public in accordance with G.S. 90-16 because the patients who testified or whose depositions were 
introduced into evidence have not consented to disclosure of their names. This record, insofar as patient names are 
disclosed, is SEALED until used by the North Carolina Medical Board in making its Final Decision or by possible future 
appeal tribunals. 

On May 15 and 16, 1996, Petitioner and Respondent, respectively, filed proposed findings of fact and written 
arguments. 

APPEARANCES 



Petitioner: Michael E. Weddington, Esq. 

Mark A. Springfield, Esq. 
P.O. Box 2611 
Raleigh, North Carolina 27602 



Respondent: John T. Williamson, Esq. 

Craig D. Mills, Esq. 
P.O. Drawer 19764 
Raleigh, North Carolina 27619 

ISSUES 

1. Whether Respondent sexually exploited Loretta Gail Williams by engaging in sexual intercourse, or 
attempting to engage in sexual intercourse, with her during a medical examination on or about April 27, 1990 and 
thereby acted immorally, dishonorably, or unprofessionally in violation of G.S. 90-14(a)(l) and (6). 

2. Whether Respondent sexually exploited patients A,B,C,D,E,F,G,H,I,J,K,L,M,N,0,P, and Q during the 
course of his medical examinations of those patients and thereby acted immorally, dishonorably, or unprofessionally in 
violation of G.S. 90-14(a)(l) and (6). 

FINDINGS OF FACT 

1 . It is stipulated that all parties are properly before the Office of Administrative Hearings (OAH) and that 
the OAH has jurisdiction of the parties and of the subject matter. 

2. It is stipulated that the Petitioner was at the time of filing of this action correctly designated as Board of 



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555 



CONTESTED CASE DECISIONS 



Medical Examiners of the State of North Carolina, and that the proper designation for the Petitioner has since been 
changed by amendment of N.C. Gen. Stat. §90-2 to North Carolina Medical Board and that the caption of this case 
should be changed accordingly. TTiere is no question as to misjoinder or non-joinder of parties. 

3. At all relevant times Respondent was, and continues to be, a physician duly licensed by the Petitioner 
for the practice of medicine in North Carolina and whose practice of medicine is subject to regulation by the Petitioner 
pursuant to Chapter 90, Article 1 of the North Carolina General Statutes. 

4. Petitioner listed 18 complaining patients in its Notice of Charges and Allegations dated April 22, 1992. 
Petitioner produced no evidence regarding patient R during the contested case hearing. 

5. Respondent Martin A. Hatcher resides in Greensboro, North Carolina where he is a practicing member 
of Wendover Park Medical Associates, P. A. Respondent graduated from Duke University Medical School in 1962. In 
1970 he became Board certified in Neurology, a subspecialty of internal medicine. The practice of Neurology concerns 
conditions of the brain, spinal cord, and peripheral nerves which cause pain. 

6. Respondent has practiced in Greensboro since 1968. He sees approximately 1,000 new patients each 
year, approximately two thirds of whom are females. He holds staff privileges at Moses Cone and Wesley Long 
Hospitals in Greensboro. 

7. Respondent has no prior history of disciplinary actions before the North Carolina Medical Board or its 
predecessor, the North Carolina Board of Medical Examiners. 

8. Respondent Hatcher, Dr. James Love, and Dr. James Adelman each testified that it was the standard of 
care of a practicing Neurologist in the Greensboro community in 1990 for new patients, both male and female, to be 
mstructed to disrobe to paper gown and underpants for a medical examination if a general medical examination were 
conducted in conjunction with or prior to a neurologic examination. Each of these practicing neurologists carried out 
breast exams of new female patients without the presence of a chaperone during and before 1990. Respondent Hatcher 
did not use chaperones with female patients unless the patient was young or requested a chaperone. Petitioner Medical 
Board did not present any evidence that this was not an accepted standard of medical practice in neurology in 1990 in 
Greensboro. 

9. Respondent, during and prior to 1990, conducted breast exams on his female patients because of the 
possibility of breast cancer. It has been Respondent Hatcher's experience that one of every ten to twelve females will 
have cancer of the breast. Many times cancer in the breast will metastasize to the head and may be caught by the 
lymphatic system, including lymph nodes under the arms. Respondent Hatcher's practice during and before 1990 was to 
look at the breast he is examining to detect discoloration; hanging symmetry; and discharge from the nipples. It has 
been his experience from his practice or other medical sources that 18 percent of breast cancer occurs under the nipples. 

10. At the time of this contested case hearing. Respondent Hatcher had no independent recollection of the 
details of the examinations of the females who are complaining witnesses. Respondent denies ever having touched a 
female patient in any way with any part of his body for his own personal gratification. 

11. Respondent saw Loretta Gail Williams, an obese 23 year old African-American female, on April 27, 
1990 for medical examination in his office because of physical complaints that included low back pain. Loretta Gail 
Williams did not testify in this contested case hearing. Her deposition and medical records were admitted into evidence. 

12. Patient A (Uoretta Gail Williams) was about 30 minutes late for her appointment and appeared confused 
to receptionist Carol Cobb who then was employed by Respondent's medical practice. Patient Williams was in the 
examining room approximately 15-20 minutes. Her examination was interrupted two or three times by Carol Cobb for 
telephone calls to Respondent Hatcher. The standard procedure in Respondent's office at that time was for staff 
members who needed to speak with the doctor to knock on the door and then enter. Carol Cobb observed both 
Respondent Hatcher and Patient Williams during her entries into the examining room and saw nothing unusual about 
either of them. Respondent Hatcher was observed by Carol Cobb on at least one occasion on the outside of the 
examination room dictating notes. 



556 NORTH CAROLINA REGISTER July 15, 1996 11:8 



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13. Carol Cobb was present when Loretta Gail Williams came out of the examining room and left the 
building. Carol Cobb formed the opinion, based upon her observations of patient Williams during both her check-in and 
departure, that Loretta Gail Williams was exhibiting a confused demeanor. 

14. On April 27, 1990, following her medical examination by Respondent Hatcher, Loretta Gail Williams 
alleged to Greensboro police that she had been raped by Respondent Hatcher. She was seen immediately after the 
alleged rape by Dr. Raymond Cox, an Obstetrician who had given her medical care during the delivery of one or more 
of her children. Dr. Cox, along with personnel of the Greensboro Police Department, conducted a rape investigation. 
Dr. Cox solicited information from Loretta Gail Williams and took physical evidence, including pubic hair combings, 
vaginal smears, and sperm residue found in her underpants. At the time of this examination by Dr. Cox, Loretta Gail 
Williams had not bathed or showered and was wearing the same clothes she had been wearing during her visit to 
Respondent Hatcher's office. 

15. Loretta Gail Williams told Dr. Cox that Respondent Hatcher had attempted to penetrate her vagina but 
had not actually done so. In contrast, she testified, during her deposition for this contested case hearing, that she was 
100 percent sure that Respondent Hatcher had entered her vagina with his penis. 

16. Laboratory tests identified the sperm residue found in patient Williams's underpants as that of her 
husband. No physical evidence of rape by Respondent Hatcher was found. No physical evidence of a rape of Loretta 
Gail Williams by Respondent Hatcher was found in the samples of his clothes, hair, saliva, and other material collected 
from him by the police on April 27, 1990. 

17. Loretta Gail Williams's deposition testimony reflects that she was facing away from Respondent 
Hatcher at the time the alleged rape occurred. She was bending over at her waist with her paper gown open at the back 
and with her underpants partially down. She did not see Respondent Hatcher's penis or see his pants down or unzipped 
at any time. She heard a rustling noise and then fell forward and held onto a chair in front of her after she heard the 
rustling noise and felt him behind her. 

18. Loretta Gail Williams did not complain to Respondent Hatcher or to any of the office staff, including 
the receptionists following her medical examination. Respondent Hatcher was tried and acquitted on the criminal charge 
of rape of Loretta Gail Williams. 

19. Loretta Gail WUliams's medical records indicate that, at the time of her alleged molestation and rape by 
Respondent Hatcher, she had been in psychotherapy or some other form of mental health or substance abuse treatment 
almost continuously for over ten years, or since the age of thirteen. Since 1980, she has been diagnosed as suffering 
from a reactive disorder, post-traumatic stress disorder, adjustment disorder with disturbance of conduct, adjustment 
disorder with mixed emotional features, post-partum depression, major depression, dysthymic disorder, compulsive 
disorder, jjersonality disorder, dependent and borderline personality traits, and anxiety disorder with histrionic traits. On 
at least two occasions both before and after the alleged incident with Respondent Hatcher, her mental condition 
deteriorated to the point that she required psychiatric hospitalization, on both a voluntary and involuntary basis. 

20. Loretta Gail Williams' medical records indicate that, prior to the alleged incident with Respondent 
Hatcher, she claimed to be the victim of physical and sexual abuse, including attempted rape, at the hands of her father, 
her ex-husband, a gang of girls, and a gang of boys. Her medical history indicates a history of alcohol abuse and drug 
dependency. In July, 1994, Loretta Gail Williams reported that she had smoked a marijuana cigar daily for the past nine 
years, which would include the day on which she visited Respondent Hatcher's office on April 27, 1990. 

21. The news media in Greensboro carried out extensive coverage of the Loretta Gail Williams rape charge 
and trial. Other of the complaining females described in this contested case read the news articles about the Williams 
rape charge and called the Police Department in Greensboro with complaints of inappropriate examinations by 
Respondent Hatcher. 

22. Patient B testified during the hearing of this contested case. She saw Respondent Hatcher on March 
27, 1990 seeking a 100 percent disability determination for Social Security payments. Patient B's presenting complaint 
was of low back pain experienced after a car accident. 

23. As a part of a medical examination of Patient B on March 27, 1990, Respondent Hatcher examined her 



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CONTESTED CASE DECISIONS 



breasts. Patient B felt that Respondent Hatcher's breast exam was more caressing as if to stimulate rather than to 
diagnose. She felt that Respondent Hatcher spent too long feeling and massaging both breasts. Respwandent Hatcher had 
her walk across the room and perform other motions such as squatting and bending as part of his examination. 

24. Patient B testified that she was angry after this exam. She did not complain about the exam to 
Respondent Hatcher during the exam or to his staff when leaving the premises. Patient B saw the newspaper articles 
about Respondent Hatcher being charged with rape by Loretta Gail Williams and decided to call Detective Spagnola of 
the Greensboro Police Department. In her statement to the Police Department, Patient B stated that she was uncomfort- 
able when Respondent Hatcher entered the exam room where she waited, clad in a cloth gown and panties, because there 
was no chaperone. She further stated that she became even more uncomfortable when Respondent Hatcher began his 
breast examination because he was looking at her breasts, something her gynecologist did not do. 

25. Patient C testified in this contested case hearing. She was seen by Respondent Hatcher in his office on 
April 24, 1990 following referral from sports medicine for pain in her right leg and arm. She was dressed in her 
underpants and a paper hospital gown for the examination which lasted for fifteen to twenty minutes. Patient C felt that 
Respondent caressed her breasts in a sexual fashion rather than in a clinical fashion. Patient C was accustomed to the 
examiner using his or her fingertips in a circular or rotating motion on her breasts, which Respondent Hatcher did not 
do. She also felt that he kneaded or massaged her breasts with more force than required to perform the exam. Patient 
C experienced discomfort during the exam when Respondent Hatcher administered a strength test in which he pulled on 
her elbows while she faced away from him and again while she faced him. On both tests, she was drawn toward 
Respondent Hatcher until she fell onto his lap. Respondent Hatcher sat on each occasion with his legs spread and his 
back against the examining table. Patient C felt what she believes was Respondent Hatcher's penis when she fell onto 
his lap. She cannot say whether his penis was erect. 

26. Patient C informed Respondent Hatcher prior to his performing a breast exam that she recently had had 
a breast exam. Patient C's medical history, available to Respondent Hatcher at the time, indicated that both her 
grandmother and mother had experienced breast cancer. Respondent Hatcher explained to Patient C that her family 
history of breast cancer was the reason for his performing one in spite of her recent exam. Patient C did not complain 
to Respondent Hatcher or to any of his office staff on the day of her exam in his office. Patient C did call Respondent 
Hatcher's office after leaving that day and informed the receptionist or nurse that she was not going to pay her bill. She 
did not indicate why. A few days later, after seeing the media reports regarding Loretta Gail Williams rape charge 
against Respondent Hatcher, she called the Greensboro Police Department about her examination on April 24, 1990. 

27. Patient D testified in this contested case hearing. She was seen by Respondent Hatcher on May 8, 
1989 because of physical complaints including pain in her left arm, left shoulder, and neck. She was dressed in her 
underpants and a paper hospital gown for the examination. She was uncomfortable with the breast exam performed by 
Respondent Hatcher because he, unlike her gynecologist, placed his whole hand on her breast and looked at them during 
the examination. She also felt that Respondent Hatcher moved her breasts around more than her gynecologist did in 
examining lymph nodes under her arms. 

28. Patient D also felt uncomfortable when Respondent Hatcher had her face away from him and bend at 
the waist. She felt Respondent Hatcher's genital area come into contact with her buttocks and felt what she believes was 
the shape of his erect penis. Patient D further felt uncomfortable when Respondent Hatcher conducted a strength test in 
which he held down on her wrist while she tried to raise her arm. Respondent Hatcher released the pressure on her 
wrist, resulting in her arm touching his groin area where she again felt what she believes was his erect penis. 

29. Patient D did not complain to Respondent Hatcher or to any of his office staff on the day of her 
examination. She went back to her referring physician but did not complain to him about Respondent Hatcher. After 
reading the newspaper accounts of the Lx)retta Gail Williams rape charge, she developed the belief that her examination 
had been significant and called Detective Spagnola of the Greensboro Police Department about her examination on May 
8, 1989. 

30. Patient E did not testify in this contested case hearing. Her deposition was offered and admitted under 
G.S. 150B-39(a). Patient E was examined by Respondent Hatcher for a determination of disability regarding Social 
Security disability benefits. Patient E's deposition discloses that she was uncomfortable during Respondent Hatcher's 
examination of her because the first thing he had her do was to bend forward whereupon he reached around her from 
behind and grabbed and wiggled her breasts for five minutes or so. During this time Patient E was dressed only in a 



558 NORTH CAROLINA REGISTER July 15, 1996 11:8 



CONTESTED CASE DECISIONS 



paper hospital gown. She alleges that she could feel Respondent Hatcher's penis, which she felt was erect. Also during 
this exam, she felt that Respondent Hatcher intentionally rubbed his erect penis against her hand while she lay on her 
back during a breast exam. 

3 1 . Patient E told the Greensboro Police that while she was waiting alone in the examining room before the 
exam began, she felt as if someone were watching her from behind a picture across the room. Patient E has been 
psychiatrically evaluated for chronic pain, anxiety, depression, irritability, and suicidal thoughts. Patient E has been 
diagnosed as having a psychopathic deviancy. Patient E's deposition testimony, under the facts of this case, does not 
have sufficient indicia of trustworthiness to support findings of fact based upon it. 

32. Patient F did not testify in this contested case hearing. Her estranged husband filed an alienation of 
affections suit against Respondent Hatcher prior to the hearing of this contested case. Patient F appeared as a witness in 
that civil suit and was deposed before trial. Pages 74-79 of her deposition in that civil matter concerned events between 
her and Respondent Hatcher in his office and were offered and admitted into evidence in this contested case hearing 
under G.S. 150B-39(a). 

33. Respondent Hatcher admits that patient F was a patient with whom he engaged in a consensual sexual 
relationship from approximately January-March, 1990. Respondent Hatcher and patient F did not engage in sexual 
intercourse in his office. During the time Respondent Hatcher and patient F were engaged in a sexual relationship, he 
provided medical examinations and treatment to her in his office. He conducted a medical examination of patient F on 
approximately January 31, 1990, the day before their first clandestine meeting away from the office. Respondent 
Hatcher and patient F usually met at her mother-in-law's house for sexual encounters, upon her suggestion and 
arrangement. 

34. Patient F's deposition testimony indicates that Respondent Hatcher removed her underpants during the 
examination on January 31, 1990 and fondled her vaginal area after having conducted a breast exam. There is no 
evidence in the record that patient F objected at any time to any of Respondent's medical examinations. The record 
indicates that patient F not only failed to object, but actively participated by suggesting a meeting place where they 
would not be disturbed. Respondent Hatcher believes that patient F and her estranged husband were just after money 
during the entire affair. Respondent Hatcher entered an out of court settlement of the alienation of affections suit 
brought by patient F's husband with patient F as a key witness. As a part of the out of court money settlement, all 
statements and allegations against Respondent were withdrawn. 

35. Patient F's deposition testimony from the alienation of affections suit demonstrates an inherent bias, in 
view of the ultimate disposition of that matter by financial remuneration and her withdrawal of statements and allegations 
against Respondent Hatcher. Even though she was not a party to that suit, her interests were allied with those of her 
husband and she was established as her husband's witness. Her cold deposition statements from this prior civil suit, 
without her live testimony, are, under the facts of this case, insufficiently trustworthy to be found as facts. Patient F's 
deposition statements, to the extent that they are inconsistent with the testimony of Respondent Hatcher, are not credible. 

36. Patient G did not testify in this contested case hearing. Her deposition transcript was offered and 
admitted into evidence. Patient G was seen by Respondent Hatcher on several occasions for severe migraine headaches, 
numbness of the face and an eye condition which caused an eye to roll back. She was given a breast exam which she felt 
was not typical because Respondent Hatcher did it while she stood whereas her gynecologist had her lie down for breast 
exams. After a hospital stay, patient G again had a breast exam performed by Respondent Hatcher. During this exam, 
which Respondent performed from behind her, he brushed up against her in a way which she, at the time, did not 
consider anything more than incidental. 

37. Patient G did not find reason to complain, and did not complain, to Respondent Hatcher about his 
conduct on any of her medical examinations or treatment visits. She did not make any report of her examinations until 
after reading the news accounts of the assault charges brought against Respondent Hatcher by Loretta Gail Williams. 
During her deposition, patient G gave contradictory statements about whether or when she observed an erection in 
Respondent Hatcher's pants and on which visit he brushed against her. 

38. Patient H testified during this contested case hearing. She was seen by Respondent Hatcher on August 
8, 1989 in the emergency room of Wesley Long Hospital in Greensboro for a pre-admission examination. Patient H was 
experiencing back and neck pain following a myelogram. She went to the hospital wearing only a cotton gown and no 



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CONTESTED CASE DECISIONS 



underwear because of her severe pain and limited ability to move and to use the bathroom without assistance. Patient 
H's complaint, which she lodged only after reading the press reports concerning the rape charge brought by Loretta Gail 
WiUiams, is that Respondent Hatcher stood at the foot of the hospital bed or stretcher on which she lay on her right side 
and asked her to raise her left leg. Respondent Hatcher continued to ask her to raise her left leg higher than she could 
or would. Since she had no underpants on, she felt that Respondent Hatcher was only trying to look at her vaginal area. 
She refused to cooperate further in this examination, telling Respondent Hatcher to "get the hell out" and "I'm not here 
to do fucking calisthenics". 

39. Patient I did not testify at this contested case hearing. Her deposition transcript was admitted into 
evidence. Patient I was examined by Respondent Hatcher in 1981 or 1982 for headaches and neck pain. She was 
uncomfortable with the breast exam he performed because she had told him that her gynecologist had performed a breast 
exam the month before and because she felt that his breast exam was more of a man and woman stimulus event rather 
than a clinical breast exam. Patient I did not complain to Respondent Hatcher or to any of his staff about his conduct of 
a breast exam. After seeing press reports about the Loretta Gail Williams rape charge some nine years later, she called 
the Greensboro Police Department with her statements. 

40. Patient J did not testify during this contested case hearing. Her deposition transcript was admitted into 
evidence. She was seen by Respondent Hatcher in approximately 1978 for headaches and neck pain. After seeing press 
reports of the Loretta Gail Williams rape charge, she called the Greensboro Police Department to report that she did not 
know why Respondent performed a breast exam on her twelve years prior when all of her pain was in her head and 
neck. 

41. Patient K did not appear and testify during this contested case hearing. Her deposition transcript was 
admitted into evidence. She was seen by Respondent Hatcher in 1976 for back and neck pain. She felt the breast exam 
conducted by Respondent Hatcher was uimecessary and that he did not have any right to touch her breasts. She made no 
complaint about this breast exam until she read press reports fourteen years later about the Loretta Gail Williams rape 
charges against Respondent. 

42. Patient L did not testify in this contested case hearing. A videotaped deposition she gave in a civil suit 
filed by Loretta Gail Williams was offered and admitted into evidence. Respondent Hatcher examined Patient L on 
January 13, 1989 for neck pain and headaches. She was dressed in a paper hospital gown and her underpants, bra, and 
pantyhose. Respondent conducted a breast exam on only one breast by removing one side of her bra. Patient L felt that 
the exam was unusual because it appeared to be more in the nature of a massaging of her breast rather than a clinical 
examination. She could feel what she believed to be an erect penis Ln Respondent's pants rubbing against her leg as he 
examined her breast and again when he sat on her foot as it rested on a stool beside the examining table. 

43. Patient M did not testify in this contested case. Her deposition transcript was admitted. She was seen 
by Respondent Hatcher on January 10, 1990 for complaints including seizures and neck pain. Patient M was dressed in 
a paper hospital gown, her bra, and underpants for the examination. During the course of her examination by 
Respondent Hatcher she became uncomfortable with the examination and put her clothes back on when he momentarily 
stepped out of the room. When Respondent Hatcher returned, he continued the exam by performing a breast exam 
which Patient M believed was fondling. Patient M did not complain to Respondent Hatcher or his staff about this 
exam. She gave a statement to Greensboro Police after Loretta Gail Williams rape charge was reported in the news 
media. 

44. Patient N testified during this contested case hearing. She was seen by Respondent Hatcher on 
December 18, 1989 for complaints including neck pain following an automobile accident. Patient N wore a paper 
hospital gown and underpants for her examination. Respondent Hatcher conducted a breast exam which she considered 
normal and similar to the ones performed by her gynecologist. Following a breast exam. Respondent had patient N 
stand between his legs facing him while he reached around her and palpated her back muscles. She felt that Respondent 
Hatcher was intentionally pulling her into him and began to resist, telling Respondent Hatcher that the exam had gone 
beyond a medical exam. Respondent Hatcher then took both breasts into his hands. Patient N felt that Respondent's 
voice had become coarse and that he had lost control of himself during this part of the exam. 

45. Patient O did not testify in this contested case hearing. Her deposition transcript was admitted. She 
was seen by Respondent Hatcher during the summer of 1989 for a history of blackouts or near blackouts. She wore 
only a paper hospital gown for her examination by Respondent who conducted a breast exam and palpation of her lower 



560 NORTH CAROLINA REGISTER July 15, 1996 11:8 



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abdomen and thighs in a manner which, considering the entire exam, made her uncomfortable. She believed that a 
chaperone should have been present but made no complaint to Respondent or to any of his staff. She gave a statement to 
Greensboro Police after reading about Loretta Gail Williams rape charge against Respondent in the newspapers. 

46. Patient P did not testily in this contested case hearing. Her deposition transcript was admitted. Patient 
P was examined by Respondent Hatcher on August 27, 1984 for complaints including lower back pain. Patient P was 41 
years old at the time of this examination. Patient P alleges that she was sexually abused by her father and an uncle 
earlier in her youth and has been under psychiatric care since about 17 years old. As of her deposition, she had been 
hospitalized on four occasions for mental disorders, the last of which occurred within one month of her deposition. 
Patient P states that she is so sensitive to sexual matters that she became angry at a female shoe salesperson once for 
putting her grandson's foot between her legs while trying shoes on him. 

47. Patient P alleges that she wore only a paper hospital gown for her examination by Respondent. She 
alleges that he performed a breast exam which began as a normal exam but became a sexual fondling by Respondent. 
She also alleges that Respondent had an erection in his pants when the exam began and that he rubbed his penis against 
her arm or hand and that he placed her foot on his erect penis while he sat below the exam table on a stool. Patient P 
did not report this activity or make any complaints until she read press reports of the Loretta Gail Williams rape charge 
six years after her own exam. 

48. The deposition testimony of Patient P, in the absence of her live testimony, raises substantial questions 
about its reliability in matters of a sexual nature because of her personal history of sexual abuse, her subsequent and 
practically constant psychiatric episodes, and her demonstrated hypersensitivity to sexual matters. Patient P's testimony 
does not have credibility sufficient to support findings of fact based upon it. 

49. Patient Q did not testily in this contested case hearing. Her deposition transcript was admitted. Patient 
Q was seen by Respondent Hatcher in June, 1989 for a medical examination related to her complaints of left hand 
numbness. Patient Q wore only a paper hospital gown for this examination. She had received three prior unremarkable 
medical examinations by Respondent. During this fourth examination, patient Q became highly upset and experienced an 
anxiety or panic attack. Respondent stood between her legs as she sat on the exam table and hugged her for a lengthy 
period of time when she experienced the panic attack and began to cry. As Respondent hugged her, she felt his erect 
penis pressing against her hand and terminated the hug by pushing him away from her. On a subsequent visit to 
Respondent's office, patient Q insisted on the presence of her mother in the examining room. Patient Q was twenty-six 
years old at the time of her fourth exam by Respondent. Patient Q contacted the Greensboro Police and Petitioner after 
news stories reported the Loretta Gail Williams rape charges brought against Respondent Hatcher. 

50. Respondent Hatcher admitted in his answers to Petitioner's requests for admission under G.S.lA-1 Rule 
36 that a physician who performs a physical examination of the breasts or other private areas of the body of his female 
patient for the satisfaction of his own personal purposes has, under the standards of acceptable and prevailing medical 
practice in North Carolina, engaged in exploitation of that patient. 

51. G.S. 90-14(a)(l) and (6) (Cum. Supp. 1995) provide in pertinent part: 

(a) The Board shall have the power to deny, annul, suspend, or revoke a license, or other 

authority to practice medicine in this State, issued by the Board to any person who has been 
found by the Board to have committed any of the following acts or conduct, or for any of the 
following reasons: 

(1) Immoral or dishonorable conduct. 

(6) Unprofessional conduct, including, but not limited to, departure from, or the 

failure to conform to, the standards of acceptable and prevailing medical 
practice, or the ethics of the medical profession, irrespective of whether or 
not a patient is injured thereby, or the committing of any act contrary to 
honesty, justice, or good morals, whether the same is committed in the 
course of his practice or otherwise, and whether committed within or without 
North Carolina. 



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CONCLUSIONS OF LAW 

Based upKDn the Foregoing Findings of Fact, I make the following Conclusions of Law. 

1. The parties properly are before the Office of Administrative Hearings. 

2. Respondent Martin A. Hatcher did not engage in an attempt to rape, and did not rape, or sexually 
molest or exploit Loretta Gail Williams during his medical examination of her on April 27, 1990. 

3. Respondent Martin A. Hatcher engaged in sexually exploitative conduct with female patients 
B,C,D,M,N, and Q during medical examinations of them in his office by performing medical examinations which went 
beyond the boundaries of medial purpose and entered the area of private purpose within the physician/patient relationship 
in which the patients extended trust to the physician to exercise appropriate professional judgment. The cumulative 
weight of the numerous instances of contact between the groin area of the physician and various parts of the bodies of 
female patients when those female patients were disrobed or dressed only in underpants and open-backed paper gowns 
and the cumulative weight of the numerous instances of breast exams by the physician which alarmed patients because it 
departed from the clinical to a private purpose of the male physician are sufficient to support a conclusion that 
Respondent engaged in exploitative conduct with the named female patients. Although specific violations of G.S. 90- 
14(a)(1) and (6) are not established by the evidence as to patients G,H,I,J,K,L, and O, the cumulative weight of 
their testimonies supports the conclusions reached as to patients B,C,D,M,N, and Q. 

4. Respondent Martin A. Hatcher has violated G.S.90-14(a)(l), prohibiting immoral conduct, by engaging 
in sexually exploitative conduct with female patients B,C,D,M,N, and Q which is inimical to the standards of the 
community as expressed in the law and is unprincipled. Black's Law Dictionary 676 (5th ed. 1979). 

5. Respondent Martin A. Hatcher violated G.S. 90-14(a)(6), prohibiting unprofessional conduct, by 
engaging in sexually exploitative conduct with female patients B,C,D,M,N, and Q which departs from and fails to 
conform to the standards of acceptable and prevailing medical practice in North Carolina. 

6. Petitioner North Carolina Medical Board has the authority, under G.S. 90- 14(a) to suspend or revoke 
the license to practice medicine held by Respondent Martin A. Hatcher for engaging in immoral and unprofessional 
conduct by sexually exploiting female patients. 

PROPOSED DECISION 

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby proposed that the North 
Carolina Medical Board suspend, for a period of one (1) year, the license to practice medicine held by Martin A. 
Hatcher on the grounds that he has violated G.S. 90-14(a)(l) and (6) by engaging in immoral and unprofessional conduct 
with female patients. Suspension rather than the more drastic remedy of revocation is proposed because, although the 
cumulative weight of the evidence supports the imposition of sanctions, it must be recogmzed that much of the evidence 
was developed only after extensive press reports concerning the Williams rape charge were read by other patients or 
former patients, some of whom alleged examination incidents as remote as 12-14 years. It also must be noted that many 
of the female complainants were made uneasy from the outset by the unexpected prospect of a neurologist conducting a 
breast exam rather than a gynecologist or family practitioner. 

It is proposed that the Board condition reinstatement of the license of Respondent Hatcher to include a provision 
barring his treatment of female patients. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, 
P O Drawer 27447. Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statute 150B-36fb). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an opportunity to file 
exceptions and proposed fmdings of fact and to present oral and written arguments to the agency. G.S. 150B-40(e). 



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A copy of the final agency decision or order shall be served upon each party personally or by certified mail 
addressed to the party at the latest address given by the party to the agency and a copy shall be furnished to his attorney 
of record. G.S. 150B-42(a). It is requested that the agency furnish a copy to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina Medical Board. 

This the 28th day of June, 1996. 



Beecher R. Gray 
Administrative Law Judge 



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STATE OF NORTH CAROLINA 
COUNTY OF NEW HANOVER 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

96 ABC 0160 



GERALD AUDRY SELLARS, 
T/A ACES & ASSOCIATES, 
Petitioner, 



ALCOHOLIC BEVERAGE CONTROL COM>nSSION, 

Respondent. 



RECOMMENDED DECISION 



This matter was heard before the undersigned administrative law judge in Burgaw, North Carolina on May 16, 



1996. 



APPEARANCES 

For Petitioner: YOW, FOX, & MANNEN, Attorneys at Law, Wilmington, North Carolina; Jerry A. 

Mannen, Jr. appearing. 

For Respondent: Melissa C. Owens, Assistant Counsel, N.C. ABC Commission, Raleigh, North Carolina. 

ISSUES 

Whether the Respondent's denial of the Petitioner's application for ABC permits for on-premise beer, 
unfortified, fortified wine, and brown bagging private club, on the grounds of local government objections and that the 
operation of the business tends to show that applicant would not abide by the ABC laws, is proper. 

STATUTES AND RULES INVOLVED 

N.C. Gen. Stat. § 183-90 1(c)(7) 
N.C. Gen. Stat. § 18B-901(c)(8) 

EXHIBITS 

The following exhibits offered by the Petitioner were received in evidence: 

PI. Membership Card for Aces & Associates. 

P2. Aces & Associates' rules and bylaws. 

M. Membership Application. 

P4. Roster of club membership. 

TTie following exhibits offered by the Respondent were received in evidence: 

Rl. Diagram of Aces & Associates. 

R3. Official Warning dated November 14, 1995. 

R4. Official Warning dated November 14, 1995. 

Respondent's exhibit two, the documents contained in the Petitioner's application file, is received for the 
purpose of demonstrating the basis for the Respondent's decision to deny the Petitioner's application and not for the truth 
of the matters asserted therein. 

Based upon the official documents in the file, sworn testimony of the witnesses, and other competent and 
admissible evidence, the undersigned makes the following: 



564 



NORTH CAROLINA REGISTER 



July 15, 1996 



11:8 



CONTESTED CASE DECISIONS 



FINDINGS OF FACT 

1. The Petitioner, Gerald Audry Sellars, and his brother own the property on the comer of 13th and Castle Streets 
in Wilmington, North Carolina. Aces & Associates is located in a portion of the building. The building also 
houses a grocery business known as Sellars Brothers. 

2. The Petitioner's application for on-premise beer, unfortified/fortified wine, and brown-bagging private club 
permits was denied by the Respondent on January 10, 1996. 

3. The Respondent notified the Petitioner that his application was being denied due to "Local government 
objections that location is not suitable to hold ABC permit" and a finding that the "Operation tends to show that 
applicant would not abide by the ABC laws." 

4. The Petitioner was issued Temporary Permits pending the investigation of his permit application. 

5. Diane Patricia Jenski, an ALE agent based in Wilmington, was assigned to investigate the Petitioner's 
application, including the physical facilities. 

6. On November 14, 1995 Agent Jenski went to Aces & Associates. She was accompanied by another ALE agent, 
Steve Deacon. 

7. When Agents Jenski and Deacon arrived at Aces & Associates, they found all of the outside entrances to the 
club locked. They entered Sellars Brothers and were able to gain access to Aces through a connecting door. 

8. Upon entering Aces, Agent Jenski observed several people playing cards at the end of the bar. 

9. Agent Jenski and Petitioner went into the Petitioner's office where she reviewed the ABC Laws and Regulations 
with the Petitioner. 

10. Agent Deacon picked up a vinyl notebook he observed in the Petitioner's office and began flipping through the 
pages. He discovered what he believed, based upon his training and experience conducting other investigations, 
was a lottery ticket. It was determined that Matthew Lemon, a friend of the Petitioner, was the owner of the 
notebook. Agent Deacon charged Mr. Lemon with unlawful possession of a lottery ticket. 

11. The Petitioner had beer on the premises, but he did not have any receipts for the beer. He said he got the beer 
from Sellers Brothers. Agent Jenski issued the Petitioner an Official Warning for procuring beer from an 
unauthorized wholesaler. 

12. The Petitioner did not have individual lockers or a membership roster on the premises on November 14, 1995. 

13. Agent Jenski observed a legal pad with tic tac toe lines and numbers on it. Based upon her training and 
experience. Agent Jenski identified the game on the legal pad as being a game of chance. She issued the 
Petitioner an official warning. 

14. Agent Jenski determined that the location of Aces was a suitable one for holding ABC permits. 

15. A Local Government Opinion Form was sent the City of Wilmington's Chief of Police, Ricky W. Simpson. 
Chief Simpson did not object to the location. However, based upon his officers' investigation of the Petitioner, 
Chief Simpson was of the opinion that the types of activities the Petitioner allowed to occur on his premises 
were detrimental to the community. Chief Simpson informed the ABC Commission that there was local 
governmental objection to the applicant. 

16. Dean Gronau has been employed with the Wilmington Police Department for eleven years. He has known the 
Petitioner since 1985. Mr. Gronau conducted the investigation of Petitioner's application for ABC permits for 
the Wilmington Police Department. 

17. Based upon what he observed when he visited Aces and upon Sellers Brothers having been cited for possessing 



11:8 NORTH CAROLINA REGISTER July 15, 1996 565 



CONTESTED CASE DECISIONS 



lottery tickets in 1994, Mr. Gronau was of the opinion that the Petitioner was facilitating the occurance of 
lottery activity on the premises of Aces. Mr. Gronau heard a bell or buzzer while he was in Aces and 
determined that there was a button behind the counter in Sellers that caused the buzzer to ring in Aces. Mr. 
Gronau also observed that the only supplies in the Petitioner's office were a box of envelopes and a note book. 

18. Although the Petitioner testified that the purpose of the buzzer was to notify him that he had a phone call or that 
suppliers where coming back, Mr. Gronau did not observe any sales people on the premises when he heard the 
buzzer and the Petitioner did not take any phone call at that time. 

19. Mr. Gronau prepared a report which went to the Police Chief and which formed the basis for Chief Simpson's 
objection to issuance of ABC permits to the Petitioner. 

20. North Carolina General Statutes section 18B-901(c) provides that before issuing a permit, the ABC Commission 
shall be satisfied that the applicant is a suitable person to hold an ABC permit for which he has applied and that 
the location is a suitable location for the ABC permits for which she has applied. 

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the following: 

CONCLUSIONS OF LAW 

1. The North Carolina Alcoholic Beverage Control Commission has the sole authority to determine the qualifica- 
tions of an applicant and the suitability of a location for the issuance of alcoholic beverage permits and to issue 
or deny the permits according to the ABC Laws and Regulations. N.C. Gen. Stat. §§18B-203(12) and 18B- 
901(d). 

2. There is no evidence that the location is not a suitable one to hold ABC permits. 

3. The Petitioner's receipt of two official warnings while possessing temporary ABC permits and his close 
association with Sellers Brothers, a business that has previously been cited for ABC violations, provides the 
Respondent a sufficient basis for concluding that the "operation [of the Petitioner's business] would tend to 
show that the applicant would not abide by the ABC laws. " 

RECOMMENDED DECISION 

The North Carolina Alcoholic Beverage Control Coimnission ("Coimnission") will make the Final Decision in 
this contested case. It is recommended that the Commission adopt the Findings of Fact and Conclusions of Law set 
forth above and affirm its decision to disapprove the Petitioner's application. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statutes section 
150B-36(b). 

NOTICE 

Before the Commission makes the FINAL DECISION, it is required by North Carolina General Statutes section 
150B-36(a) to give each party an opportunity to file exceptions to this RECOMMENDED DECISION, and to present 
written arguments to those in the agency who will make the final decision. 

TTie Commission is required by North Carolina General Statutes section 150B-36(b) to serve a copy of the 
FINAL DECISION on all parties and to furnish a copy to the Parties attorney of record. 

This the 25th day of June, 1996. 



Brenda B. Becton 
Administrative Law Judge 



566 NORTH CAROLINA REGISTER July 15, 1996 11:8 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



The North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, titles 
and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major department in the 
North Carolina executive branch of government has been assigned a title number. Titles are further broken 
down into chapters which shall be numerical in order. The other two, subchapters and sections are optional 
subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 



TITLE 


DEPARTMENT 


LICENSING BOARDS 


CHAPTER 


1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 


27 


NC State Bar 


Pastoral Counselors, Fee-Based Practicing 


45 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Title 21 contains the chapters of the various occupational licensing boards. 



NORTH CAROLINA REGISTER 



July 15, 1996 



567 



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BARCLAYS OFFICIAL NORTH CAROLINA ADMINISTRATIVE CODE - 1995 






ONE-TIME 


ANNUAL 






PURCHASE 


SUBSCRIPTION 


DESCRIPTION 


CODE 


PRICE 


PRICE 


Title 1 - Dept. of Administration - Full Title 


201 00 00 


$63.00 


$90.00 


Division of Purchase & Contract 


201 10 05 


«21.00 


$30.00 


Federal Block Grant Funds 


201 10 33 


«17.50 


$25.00 


Title 2 - Dept. of Agriculture - Full Title 


202 00 00 


$98.00 


$140.00 


Food & Drug Protection Division 


202 15 09 


S28.00 


$40.00 


Structural Pest Control Committee 


202 1 5 34 


$21.00 


$30.00 


Agricultural Markets 


202 1 5 43 


$21.00 


$30.00 


Plant Industry 


202 15 48 


$21.00 


$30.00 


Animal Industry 


202 15 52 


$21.00 


$30.00 


Title 3 - Dept. of State Auditor - Full Title 


203 00 00 


$7.00 


$10.00 


Title 4 - Dept. of Commerce - Full Title 


204 00 00 


$87.50 


$125.00 


Alcoholic Beverage Control Commission 


204 1 5 02 


$12.00 


$40.00 


Banking Commission 


204 1 5 03 


$24.50 


$35.00 


Credit Union Division 


204 1 5 06 


$14.00 


$20.00 


Savings & Loan Division 


204 1 5 09 


$14.00 


$20.00 


Industrial Commission/Workers Compensation 


204 15 10 


$14.00 


$20.00 


Savings Institutions Division 


204 15 16 


$24.50 


$35.00 


Title 5 ~ Dept. of Corrections - Full Title 


20B 00 00 


$56.00 


$80.00 


Division of Prisons 


205 1 5 02 


$24.50 


$35.00 


Title 6 - Council of State - Full Title 


206 00 00 


$21.00 


$30.00 


Title 7 - Dept. of Cultural Resources - Full Title 


207 00 00 


$21.00 


$30.00 


Title 8 - State Board of Elections - Full Title 


208 00 00 


$7.00 


$10.00 


Title 9 - Offices of the Governor & Lt. Governor - Full Title 


209 00 00 


$31.50 


$45.00 


Title 10 - Dept. of Human Resources - Full Title 


210 00 00 


$346.50 


$495.00 


Licensing of Health Facilities 


210 20 10 


$45.50 


$65.00 


Detention Facilities 


210 20 20 


$31.50 


$45.00 


Mental Health & Rehabilitation Services 


210 20 30 


$77.00 


$110.00 


Social Services 


210 20 40 


$119.00 


$170.00 


Children Services/Day Care 


210 20 41 


$31.50 


$45.00 


Services for the Aging 


210 20 42 


$31.50 


$45.00 


Services for the Blind 


210 20 43 


$28.00 


$40.00 


Services for the Deaf & Hard of Hearing 


210 20 44 


$17.50 


$25.00 


Employment Opportunities 


210 20 45 


$35.00 


$50.00 


Title 1 1 - Dept. of Insurance - Full Title 


211 00 00 


$63.00 


$90.00 


Insurance 


211 1001 


$56.00 


$80.00 


Consumer Services 


211 10 04 


$24.50 


$35.00 


Fire & Rescue Services 


211 10 05 


$17.50 


$25.00 


Agent Services 


211 10 06 


$28.00 


$40.00 


Engineering & Building Codes 


211 1008 


$21.00 


$30.00 


Title 12 - Dept. of Justice - Full Title 


212 00 00 


$63.00 


$90.00 


Private Protective Services 


212 1007 


$21.00 


$30.00 


Police & Sheriff's Education & Training Standards 


212 1009 


$31.50 


$45.00 


NC Alarm Systems Licensing Board 


212 10 11 


$17.50 


$25.00 


Title 13 - Dept. of Labor - Full Title 


213 00 00 


$77.00 


$110.00 


Mine & Quarry Safety 


213 15 06 


$14.00 


$20.00 


General Safety/OSHA 


213 20 00 


$31.50 


$45.00 


Wage & Hour Rules 


213 15 12 


$14,00 


$20.00 


Boiler & Pressure Vessel Safety 


213 15 13 


$14.00 


$20.00 


Apprenticeship & Training 


213 15 14 


$14.00 


$20.00 


Elevator & Amusement Device Safety 


213 15 15 


$14.00 


$20.00 


Title 14A - Dept. of Crime Control & Public Safety - Full Title 


214 00 00 


$31.50 


$45.00 


Alcohol Law Enforcement 


214 00 08 


$17.50 


$25.00 


Victims Compensation Fund 


214 00 11 


$14.00 


$20.00 


Title 1 5A - Dept. of Environ., Health, & Nat. Resources - Full Title 


215 00 00 


$276.50 


$395.00 


Environmental Management 


215 15 00 


$115.50 


$165.00 


Air Quality 


215 15 10 


$49.00 


$70.00 


Water Quality 


215 15 20 


$49.00 


$70.00 


Land & Waste Management 


215 15 30 


$56.00 


$80.00 


Solid Waste Management 


215 1531 


$35.00 


$50.00 


Underground Storage Tanks 


215 15 32 


$17.50 


$25.00 



DESCRIPTION 





ONE-TIME 


ANNUAL 




PURCHASE 


SUBSCRIPTION 


CODE 


PRICE 


PRICE 


215 15 40 


$31.50 


$45.00 


215 25 00 


$105.00 


$150.00 


215 25 10 


$42.00 


$60.00 


215 25 20 


$35.00 


$50.00 


215 25 30 


$59.50 


$85.00 


215 25 31 


$17.50 


$25.00 


216 00 00 


$21.00 


$30.00 


216 10 06 


$21.00 


$30.00 


217 00 00 


$91.00 


$130.00 


217 15 10 


$31.50 


$45.00 


217 15 20 


$56.00 


$80.00 


217 15 27 


$31.50 


$45.00 


217 15 29 


$21.00 


$30.00 


218 00 00 


$21.00 


$30.00 


218 10 06 


$21.00 


$30.00 


219 00 00 


$63.00 


$90.00 


219 10 02 


$28.00 


$40.00 


219 1003 


$35.00 


$50.00 


220 00 00 


$31.50 


$45.00 


221 00 00 


$143.50 


$205.00 


222 00 00 


$0.00 


$0.00 


223 00 00 


$7.00 


$10.00 


224 00 00 


$7.00 


$10.00 


225 00 00 


$42.00 


$60.00 


226 00 00 


$7.00 


$10.00 


227 00 00 


$42.00 


$60.00 


299 99 98 


$375.00 


$750.00 


266 00 00 




$750.00 


266 50 00 


-- 


$250.00 


288 50 00 


$295.00 


$475.00 


288 80 00 


$40.00 


$75.00 


299 90 00 


$16.00 





Coastal Management 

Environmental Health 

Radiation/Nuclear Waste 

Sanitation 

Public Health 

Intoxilizer & Breathalyser 

Tille 16 - Dept. of Public Instruction - Full Title 

Elementary & Secondary Education 

Title 1 7 - Dept. of Revenue - Full Title 

Taxes on Individuals 
Taxes on Business 
Sales & Use Tax Division 
Motor Fuels Tax Division 

Title 1 8 - Secretary of State - Full Title 

Securities Division 

Title 19A - Dept. of Transportation - Full Title 

Division of Highways 
Division of Motor Vehicles 

Title 20 - Dept. of tfie State Treasurer - Full Title 

Title 21 - Occupational Licensing Boards - Full Title 

Title 22 - Administrative Procedures Act - Repealed 

Trde 23 - Dept. of Community Colleges - Full Tide 

Title 24 - Independent Agencies - Full Title 

Title 25 - Office of State Personnel - Full Tide 

Title 26 - Office of Administrative Hearings - Full Title 

Title 27 - North Carolina State Bar - Full Title 

North Carolina Administrative Code - Full Code 

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CD-ROM North Carolina Administrative Code 

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